Citation Nr: 21077148 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-58 530 DATE: December 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. FINDING OF FACT A hearing loss disability was not manifested in either ear during the Veteran's service; sensorineural hearing loss (SNHL) was not manifested to a compensable degree within a year following his discharge from service; and his current hearing loss disability is not shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 9, 1990 to January 8, 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal of an October 2015 Department of Veterans Affairs (VA) rating decision. In May 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. A November 2019 Board decision remanded these matters for additional development [and granted service connection for tinnitus, resoling that matter]. In February 2021, these matters were again remanded for additional development. At the outset, the Board finds there has been substantial compliance with the November 2019 and February 2021 Board remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). A review of the June/July 2021 opinions found them adequate for rating purposes, which will be discussed further below. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include SNHL as an organic disease of the nervous system) may be presumed to be service-connected if manifested to a compensable degree within a specified period of time following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's military occupational specialty (MOS) was cannon crewman. On January 1990 entrance examination audiometry, puretone thresholds (in decibels) were: HERTZ 500 1000 2000 3000 4000 Right 0 0 10 5 5 Left 5 0 0 0 5 On a December 1990 reference audiogram following exposure to noise duties in service, audiometry found that puretone thresholds were: HERTZ 500 1000 2000 3000 4000 Right 10 0 5 5 5 Left 10 0 0 15 10 It was noted that the Veteran was routinely exposed to hazardous noise. Service treatment records (STRs) contain no mention of complaints, diagnosis, or treatment pertaining to hearing loss. October 2007 and April 2009 VA treatment records note the Veteran denied having any hearing problems. A September 2014 VA treatment record notes complaints of loss of right ear hearing acuity. The Veteran reported that his right ear initially felt plugged and there was no change with attempts to clean it. He stated that an MRI was performed was negative for a tumor. On examination, severe to profound mixed right ear hearing loss ear was diagnosed; the left ear was within normal limits. In a July 2015 statement in support of his claim, the Veteran asserted that hearing loss was caused by noise from artillery fire training exercises in service. On September 2015 VA audiological examination audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 90 105+ 105+ 105+ 105+ Left 15 5 10 15 15 Speech audiometry revealed speech recognition ability of 100 percent in the left ear; the right ear could not be tested. A right ear mixed hearing loss was diagnosed while left ear hearing was normal. The Veteran reported that he had substantial exposure to noise in service. In an opinion against the claim, the examiner stated a mixed hearing loss is not generally associated with noise induced hearing loss. At the May 2019 hearing, the Veteran testified that his left ear hearing acuity has worsened, and that he now has prescribed hearing aids for both ears. He also testified that his audiologist told him that his hearing loss was related to service. On October 2020 VA audiological examination, puretone thresholds were: HERTZ 500 1000 2000 3000 4000 Right 95 95 90 85 85 Left 45 60 55 55 60 Speech audiometry revealed speech recognition ability of 96 percent in the left ear and 30 percent in the right. The diagnosis was left ear SNHL and right ear mixed hearing loss. The examiner stated that the right ear mixed hearing loss has some medical involvement that would require ENT evaluation to determine the etiology. However, the examiner further noted that records indicate that the right ear hearing loss developed between 2013 and 2015. The examiner opined that the Veteran's left ear hearing loss is not related to his service, noting that he had normal hearing sensitivity in the left ear on December 1990 audiological examination and on the 2015 VA examination. The examiner stated any hearing loss developed long after military service as, although he worked in a MOS with a high probability for hazardous noise exposure, medical literature does not support such a delayed onset of hearing loss. In a March 2021 statement in support of the claim, his private provider opined that "from his exposure to cannon fire, he has significant bilateral hearing loss and related tinnitus" and requested VA to give the Veteran the benefit of the doubt in granting service connection for the health issues which stem from service. In a June 2021 VA medical advisory opinion, a VA consulting provider (audiologist) opined that the Veteran's bilateral hearing loss is less likely than not related to his service. The provider explained that his hearing was normal on December 1990 audiological examination as well as 23 years after service. The provider stated that hearing loss beginning many years after separation is consistent with age-related hearing loss. Additionally, commenting on the 2020 VA examiners description of "medical involvement" as it related to the right ear mixed hearing loss, the provider explained that a mixed hearing loss indicates that there is a middle ear pathology ("medical involvement") causing much or all of the hearing loss. While the specific middle ear pathology was not identified, the provider noted that the right ear hearing loss began many years after separation, and was due to a middle ear pathology. He stated that noise exposure does not cause delayed damage to the middle ear or cause mixed hearing loss. The provider concluded that right ear hearing loss began many years after his two months of service and was caused by pathology that is unrelated to noise damage. In a July 2021 VA medical opinion, another VA consulting provider (an otolaryngologist as the February 2021 Board remand requested) opined that the bilateral hearing loss is less likely than not related to service. The provider explained that the risk for hearing loss from noise is based on the intensity of the noise and the duration of the exposure. The mere fact of being exposed to noise does not indicate one will get hearing loss. The provider opined that the Veteran's acknowledged noise exposure in service is insufficient of itself to lead to hearing loss, noting he had normal hearing in December 1990 and for 23 years after separation until gradual hearing loss was found in 2015. The provider explained that for noise to [be found the] cause of hearing loss, the loss would have been manifest in close proximity to [the noise exposure in] service. The fact that 23 years had passed, and hearing was still normal, shows that the hearing loss would not be related to any [noise trauma] experience in service. The examiner opined that the hearing loss developing many years after separation is consistent with age-related hearing loss and indicates that hearing loss is less likely than not due to military service and noise exposure. In a July 12, 2021 addendum to the opinion addressing an alternate etiology for the Veteran's hearing loss, the VA otolaryngologist noted there are a myriad of reasons why one can develop hearing loss and to determine why this particular Veteran developed hearing loss (if not due to service) would require an in-depth physical history and physical with audiometric testing. He noted that the Veteran had normal hearing at separation and for 23 years following separation from service until hearing loss was diagnosed. While he was unable to say why the Veteran currently has hearing loss without resort to mere speculation, he stated, "With a 23 year span or normal hearing with certainty I can say that not only is it less likely than not his hearing loss less likely than not caused by military service but it is not caused my military service". He also stated, "For the hearing loss to be related to service, it would have had to have developed in close proximity to the noise exposure in service. The farther one gets from the exposure, the less likely that exposure can lead to loss." At the outset, it is noteworthy that the analysis if this claim has been complicated by the Veteran's failure to cooperate with VA attempts to obtain private treatment records for hearing loss. The November 2019 Board remand noted private treatment records were outstanding. In a September 2020 VA letter he was asked to submit authorizations for VA to obtain records of his evaluations or treatment for hearing loss from his private providers. He has not submitted the authorization, and it is assumed that either no additional records exist, or that any existing records do not support his claim. Regardless, VA cannot obtain private records without the Veteran's identification of the records and authorization for VA to secure them. It is not in dispute that the Veteran was exposed to loud noise in service and has a current bilateral hearing loss disability. What remains necessary to substantiate this claim is competent evidence that the bilateral hearing loss disability is etiologically related to his service. The evidence does not show that a hearing loss disability was manifested during service in either ear. The Veteran's STRs, including his December 1990 audiological examination report, are silent for complaints, treatment, findings, or diagnoses pertaining to hearing loss. Likewise, a hearing loss disability is not shown to have been manifested within a year following the Veteran's separation from service, and postservice continuity of SNHL is not shown. Right ear hearing loss was first diagnosed by regulation-specified audiometry in 2015 (over 25 years after his separation from active duty service) and left ear sensorineural hearing loss was first diagnosed by such audiometry in 2020 (almost 30 years after his separation from active duty service). Therefore, service connection for hearing loss on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112, or based on continuity under 38 C.F.R. § 3.303 (b)), is not warranted. Whether a current hearing loss disability may, in the absence of evidence of onset in service and continuity thereafter, be related to remote service (and noise exposure therein) is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The Veteran is a layperson, and his own opinion in the matter is not competent evidence. The preponderance of the competent (medical) evidence is against a finding that the Veteran's current left and right ear hearing loss is etiologically related to his active service. The Board finds the opinions by the June 2021 VA audiologist and June/July 2021 VA otolaryngologist to be cumulatively probative and persuasive. The VA providers are medical professionals, and are eminently qualified to offer opinions regarding the etiology of hearing loss. They acknowledged that the Veteran was exposed to noise in service, and citing to medical principles regarding the circumstances under which a hearing loss disability may be related and the duration between noise exposure in service and the first documentation of a hearing loss disability in this case, they opined that in this case the Veteran's hearing is unrelated to exposure to noise in service. The VA otolaryngologist explained in his addendum that while hearing loss could be caused by a myriad of reasons and the specific etiology [from among those possible causes] could not be determined without more sophisticated medical evaluation, and an opinion regarding the specific etiology could not be given without resort to mere speculation, he could state with certainty that based on the circumstances in this case, the Veteran's hearing loss disability was not due to exposure to noise in service. In addition, the June 2021 consulting audiologist explained that noise exposure does not cause delayed damage to the middle ear or cause mixed hearing loss as seen in the right ear and that hearing loss developing many years is consistent with age-related hearing loss (and thus not related to service). [The Board notes the 2019 Board decision granted service connection for tinnitus. That grant was based on a chronic disease legal presumption (competent lay evidence of onset in service and continuity thereafter) and did not require a medical opinion to establish a nexus between service and the current disability. Continuity of a hearing loss disability cannot be established solely by lay reports of remote perceptions, and is simply not shown.] The Board notes the March 2021 statement in support of the claim but finds that opinion lacking in probative value. While the provider indicated that the Veteran's bilateral hearing loss is related to his military service/exposure to noise therein, the opinion was conclusory as it did not include rationale, cite to supporting factual data or medical principles, and did not account for the lengthy postservice interval before the Veteran's hearing loss disability was first clinically noted. Therefore, it merits much lesser probative value. The preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss is, or may be, etiologically related to his service. Accordingly, the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 56. [The Board notes the Veteran submitted a December 2021 statement in support of entitlement to service connection for a bilateral foot disability. However, that matter is not before the Board at this time. A June 2021 rating decision denied service connection for bilateral pes planus and the Veteran has not appealed that decision. The Veteran may appeal the Agency of Original Jurisdiction (AOJ) by submitting a VA Form 10182 prior to June 2022.] GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.