Citation Nr: 21076591 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-48 434 DATE: December 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a bowel disability, to include gastroesophageal reflux disease (GERD), is remanded. FINDING OF FACT The record evidence shows that the Veteran's bilateral hearing loss was not incurred in active service or within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from February 1997 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board reopened the Veteran's claim for service connection for bilateral hearing loss and remanded the issue for further development. The Board also remanded the Veteran's claim for service connection for a bowel disability. A review of the claims file shows that there has been substantial compliance with the Board's remand directives only with respect to the service connection claim for bilateral hearing loss. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding the service connection claim for a bowel disability again, additional development is required before this claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). Service Connection 1. Entitlement to a service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss is related to in service noise exposure when he worked at an aircraft maintenance hangar. Regarding the first element of service connection, a current disability, the Veteran has demonstrated current bilateral hearing loss. See 38 C.F.R. § 3.385. In that regard, he had a VA audiological evaluation in October 2020, which revealed puretone thresholds sufficient to establish a disability for VA purposes in the bilateral ears. Id. He was diagnosed with bilateral sensorineural hearing loss. Consequently, the first element of service connection has been met. As to the second element of service connection, in-service incurrence, the evidence conflicts. A review of the Veteran's service treatment records reflects no complaint, finding, or diagnosis pertaining to hearing loss. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). On audiological evaluation conducted at the Veteran's entrance examination in February 1997, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 0 LEFT 10 0 0 0 0 On audiological evaluation conducted in October 2005, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 15 20 LEFT 15 10 10 10 20 Although the evidence does not demonstrate in-service hearing loss, the record supports finding that the Veteran was exposed to hazardous noise in service. In July 2005, he stated that he was exposed to hazardous noise as an aircraft maintenance worker. His primary specialist was noted to be a supply management journeyman. Giving the Veteran the benefit of the doubt, the Board finds that the second element of service connection, in-service incurrence, has been met. Thus, this appeal turns on the final element of service connection, a nexus between the current disability and service. As to this element, the evidence preponderates against a finding of nexus. In October 2005, the Veteran presented for a VA examination. He reported that he worked as a supply technician and noted that his military noise exposure consisted of delivering supplies to the flight lines. He noted the use of ear protection when delivering supplies on the flight lines and reported strongly that he does not hear well. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 15 20 LEFT 15 10 10 10 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. While the VA audiologist did not provide a nexus opinion, this clinician noted that the Veteran's hearing was within normal limits bilaterally. Pursuant to an April 2020 Board remand, the Veteran was offered a VA examination in October 2020. There, he stated that he was exposed to general noise from the hangar, jet engines, and general noise from the flight line. He wore hearing protection at times. The VA audiologist noted that the Veteran was a supply management journeyman which is listed as having a low potential for hazardous noise exposure. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 15 20 LEFT 20 15 10 10 20 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. The VA audiologist opined that the Veteran's bilateral hearing loss is less likely than not caused by or a result of an event in military service. This examiner indicated that the entrance audiogram showed normal hearing and, even though there were no other audiograms to document a permanent threshold shift while in service, an audiogram performed in October 2005 showed normal hearing bilaterally. The VA examiner noted that, due to the fact there was no hearing loss documented during service or within a year of separation, the bilateral hearing loss is less likely than not caused by or a result of an event in military service. In an addendum opinion given in November 2021, the VA examiner opined that, due to the fact there was no hearing loss documented during his time in service or within a year of separation, the Veteran's right ear and left ear hearing loss are less likely than not (less than 50 percent probability) caused by or a result of an event in military service. The Board finds the VA audiologist's opinions from April 2020 and November 2021 to be the most probative record evidence on the issue of whether the Veteran's bilateral hearing loss is related to active service. This evidence accurately characterized the service treatment records and the onset of the Veteran's hearing loss. The Board notes that there was nothing in the Veteran's service treatment records to note any problems with hearing loss. The first record of hearing loss was noted in June 2005 where he reported a loss of hearing working on the flight line in the military. This was several years after his discharge from service. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In short, the April 2020 and November 2021 VA examiner's negative nexus opinions are consistent with the overall record. The Board acknowledges the Veteran's reports of noise exposure in service and his assertions that such exposure is related to his current bilateral hearing loss. The Board again recognizes that the absence of evidence of bilateral hearing loss during service is not fatal to the Veteran's claim. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). He is not competent to opine as to the specific cause of his current bilateral hearing loss, however. The Board finds that the conclusions of the VA audiologist in April 2020 and November 2021 to be more probative than the Veteran's lay statements. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, even though the Veteran reported that his hearing loss began in service, he had normal audiograms at his entrance examination and in his October 2005 VA examination. He also did not report any hearing loss problems at any point in his service treatment records. Therefore, the Board finds that there is insufficient evidence to demonstrate incurrence of bilateral hearing loss during active service or within one year of service discharge. The weight of the evidence of record is against finding that the Veteran's conceded in-service noise exposure is linked causally to his current bilateral hearing loss. Nor does the weight of the evidence suggest that an organic disease of the nervous system manifested by bilateral hearing loss occurred in service or within one year of service separation. In summary, the Board finds that service connection for bilateral hearing loss is not warranted. REASONS FOR REMAND 1. Entitlement to a service connection for a bowel disability is remanded. The Veteran contends that his bowel disability is related to his service. His private treatment records show that he reported abdominal pain as well as bloody stools and was diagnosed with gastroesophageal reflux disease (GERD). Therefore, the Board has recharacterized the claim for service connection for a bowel disability to include his diagnosed GERD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2020, the Board remanded the claim for a VA examination to assess the nature and etiology of any bowel condition. In November 2020, the Veteran was afforded a VA examination; however, the Board finds that the VA examination was inadequate. See Barr v. Nicholson, 21 Vet. App. 312 (2007). To begin, the VA examiner noted that the Veteran has not been diagnosed with an intestinal condition. The Board finds this to be inconsistent with private treatment records which indicated that the Veteran was diagnosed with GERD. This also is internally inconsistent with the VA examiner's own findings as this clinician noted that the Veteran had symptoms of abdominal pain and bloating, GERD, and hemorrhoids which could account for his bloody stools. The Board also finds that the VA examiner did not consider the Veteran's lay statements that he lost blood every time he used a restroom, that this has been going on for years, and he attributed it to his hectic schedule during service. This statement is corroborated by a July 2005 statement where he reported that he experienced stress from working long hours, training, and personal improvement such as promotion. While the VA examiner indicated that the Veteran's symptoms could account for his bloody stools, this examiner did not address the contentions that his bowel disability is connected to his hectic schedule during service. Given the foregoing, the Board finds that, on remand, another examination should be provided to the Veteran which addresses this matter. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the nature and etiology of the Veteran's bowel disability. The claims file and a copy of this REMAND should be provided for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bowel disability, to include GERD, is related to active service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each bowel disability currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a bowel disability, alone, is insufficient rationale for a medical nexus opinion. The clinician also is advised that the Veteran contends that he lost blood every time he used a restroom during service, this went on for years, and is attributed to his hectic schedule during service. The clinician also should consider the Veteran's July 2005 statement that he experienced much stress from working long hours, training, and personal improvement such as promotion. 3. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kim, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.