Citation Nr: 21077315 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 14-37 631 DATE: December 29, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that a bilateral hearing loss disability began during active service, within one year of separation from service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Coast Guard from October 1978 to April 1980. This case comes before the Board of Veterans Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affair (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2018 hearing. A transcript of the hearing has been associated with the claims file. The Board remanded the matter in November 2016 and April 2019. Most recently, the matter was remanded again in July 2021 to obtain a clarifying addendum opinion. 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases (to include sensorineural hearing loss (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 following separation from service (one year for organic disease of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels (dB) or greater; 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran asserts he has a bilateral hearing loss disability related to noise exposure from field artillery during military service. Of note, service treatment records (STRs) are silent for any complaints or diagnosis of hearing loss. An audiogram conducted in November 1978 for pre-training purposes showed the following puretone thresholds, in decibels: HERTZ 250 500 1000 2000 3000 4000 6000 8000 RIGHT X 5 5 5 5 5 40 X LEFT X 5 0 5 5 5 5 X In the associated report of medical history, the Veteran denied having any or ever having any hearing loss. An audiogram conducted during the Veteran's February 1979 aircrew candidate examination showed the following puretone thresholds, in decibels: HERTZ 250 500 1000 2000 3000 4000 6000 8000 RIGHT 05 00 05 05 10 10 05 10 LEFT 25 10 05 10 05 00 20 10 In the associated report of medical history, the Veteran denied having or ever having had hearing loss. The Veteran had another audiogram performed in February 1980 as part of his candidate aircrew examination. Puretone thresholds, in decibels, were: HERTZ 250 500 1000 2000 3000 4000 6000 8000 RIGHT X 00 05 05 10 10 05 X LEFT X 10 05 10 05 00 20 X In the associated report of medical history, the Veteran denied having or ever having had hearing loss. Postservice records show that in February 2004, during a VA neurological biophysical assessment, the Veteran was not noted to have any hearing impairment. On January 2011 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 25 25 LEFT 25 25 25 30 55 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. Based on these results, the examiner determined the Veteran had mild loss at the 1000 Hz and a moderate sensorineural hearing loss above the 4000 Hz level in the right ear with mild to moderately severe sensorineural hearing loss above the 2000 Hz level in the left ear. Notably, according to 38 C.F.R. § 3.385, the Veteran was only demonstrated to have a hearing loss disability by VA standards for the left ear. The examiner opined the Veteran's hearing loss was less likely as not caused by or a result of military noise exposure. In forming this medical opinion, the examiner reviewed the Veteran's STRs and noted that they showed that in November 1978, the Veteran had mild loss at the 6000 Hz level in the right ear with otherwise normal acuity; in February 1979, a hearing test for flight crewman revealed normal hearing bilaterally; and in February 1980, a hearing test also showed normal hearing acuity bilaterally. In May 2012, the Veteran's claims file was returned to the January 2011 VA examiner for an addendum medical opinion. Specifically, it was determined insufficient rationale had been provided for his January 2011 opinion. In the May 2012 addendum medical opinion, the January 2011 VA examiner stated that a review of the claims file had revealed a February 1980 hearing test that served as the Veteran's service separation physical; that hearing test indicated hearing acuity "well within normal limits." The examiner then stated that as a result of that finding, there was no association or connection with the hearing loss observed during the January 2011 examination. The examiner concluded the hearing loss identified during the January 2011 examination was not caused by or a result of military noise exposure. On September 2012 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 25 30 LEFT 15 25 25 35 45 Speech audiometry revealed speech recognition ability of 96 percent in each ear. No etiology opinion was provided for the hearing loss disability demonstrated in the left ear. According to 38 C.F.R. § 3.385, hearing loss not demonstrated in the right ear for VA purposes. The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2018. The Veteran reported noise exposure in service as he worked around large engines on boats. However, he noted no one had suggested hearing aids. Following the hearing, the Veteran submitted a November 2018 private audiological evaluation, conducted using the Maryland CNC test, in support of his claim. That private audiologist diagnosed moderate sensorineural hearing loss in both ears and opined that, based on the Veteran's case history, it was at least as likely as not that this moderate hearing loss was caused by noise exposure while in the Coast Guard. Specifically, the private audiologist noted the Veteran had a long history of noise exposure that started with his military service and continued post service as a truck driver and construction worker. The private audiologist also noted the Veteran's report that he had difficulty hearing ever since an incident in service where he had to go into an engine room to cut off fuel. In September 2020, the Veteran was afforded a new VA examination. This examination was deemed inconclusive as to any audiometric readings because the examiner reported they could not perform the test. It was noted the Veteran's response reliability was deemed poor, as the Veteran could have a conversation at a normal level with little to no issue but could not repeat words once testing began. Due to the inconsistencies of the Veteran's responses and the lack of evidence to show noise exposure, the examiner stated they could not provide an accurate opinion regarding the etiology and type of hearing loss that the Veteran might or might not have without resorting to speculation. The examiner did not, however, that the Veteran reported noticing hearing difficulty in 1994. The matter was then remanded in July 2021. The Board noted that, while the Veteran was not shown to have bilateral hearing loss due to the difficulties at the September 2020 VA examination, the Veteran had been shown to have had bilateral hearing loss for VA purposes as indicated by the November 2018 private evaluation. Accordingly, the Board remanded for an addendum opinion to reconcile the conflicting opinions of record. Pursuant to this remand, a VA addendum opinion was rendered in July 2021. The examiner opined the Veteran's hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Coast Guard examination from October 1978 was a whisper exam, which was not a reliable measure of hearing acuity. However, the Veteran's entrance examination noted hearing within normal limits bilaterally, except for a mild loss at 6000 Hz in the right ear. Aircrew Candidate examinations from February 1979 and February 1980 both noted hearing to be within normal limits bilaterally. The examiner further recounted that the examination dated January 2011 suggested a mild hearing loss at 1000 Hz and a moderate hearing loss above 4000 Hz in the right ear, and a mild to moderately severe sensorineural hearing loss above 2000 Hz in the left ear; as a result of that finding, the examiner determined there was no association or connection with the hearing loss observed during the January 2011, September 2012, and November 2018 examinations. The examiner emphasized that the examination dated September 2012 noted audiometric testing which suggested a mild loss at 1000 Hz and a moderate sensorineural hearing loss above 4000 Hz in the right ear and a mild to moderately severe sensorineural hearing loss above 2000 Hz in the left ear. The private examination dated November 2018 noted a moderate sensorineural hearing loss in both ears. The examiner concluded the hearing loss identified during the January 2011, September 2012 and November 2018 examinations was not caused by or a result of military noise exposure. The examiner stated that, due to normal hearing throughout service, noise experienced in civilian life, and the lack of evidence of noise during service, it was their opinion that the Veteran's current hearing loss was less likely than not related to military noise exposure. After a review of the evidence, the Board finds the preponderance of the evidence is against granting the claim for bilateral hearing loss. The Board acknowledges the Veteran believes his current bilateral hearing loss is related to his in-service noise exposure, to include an incident in service where he had to go into an engine room to cut off fuel. See September 2018 Hearing Transcript, and November 2018 private examination. Notably, a Veteran is competent to testify regarding facts or circumstances that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994). However, he is not competent to establish that he has a hearing loss disability by VA standards, as such requires diagnostic testing, or provide a nexus opinion regarding this issue. The issue is medically complex and outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Further, findings of competency and credibility are two distinct matters, and after a careful review of the evidence, the Board finds that while the Veteran is competent to testify as to observable symptoms, such as having trouble hearing since the engine room incident in service, his statements regarding having had continuous hearing loss since service are not credible. Significantly, as noted, the Veteran had multiple opportunities in service to report hearing loss. However, in November 1978, February 1979, and February 1980, the Veteran denied having or ever having had hearing loss. Audiological evaluations conducted in February 1979 and February 1980 also demonstrated normal hearing acuity in both ears. During a February 2004 VA neurological biophysical assessment, conducted many years after the Veteran's separation from service, it was noted that the Veteran did not have any hearing impairment. The Veteran also reported during the September 2020 VA examination that he noticed hearing difficulty in 1994. Based on this information, it is not shown that the Veteran's bilateral hearing loss disability became manifest to a compensable degree within one year of his separation from service, or that he has had continuous symptoms of hearing loss since service. As for the question of whether the Veteran's current bilateral hearing loss disability is otherwise related to the noise exposure he experienced in service, the Veteran submitted a favorable opinion from a private audiologist in November 2018. However, the Board does not find this opinion to be probative as it appears to be based entirely on history relayed by the Veteran and does not reflect that the private audiologist had an opportunity to review or consider the Veteran's STRs, which show that he had normal bilateral hearing acuity at the time of his separation from service (as well as during service) and that the Veteran denied having hearing loss on multiple occasions in service. From the November 2018 medical opinion, it appears the private audiologist relied primarily on the Veteran's report that he had had difficulty hearing ever since an engine room incident in service to conclude that the Veteran's current hearing loss was at least as likely as not caused by excessive noise exposure and the incident while in the Coast Guard. However, as discussed above, the Board does not find such accounts to be credible. Consequently, the Board gives more probative weight to the July 2021 VA examiner's addendum opinion. That examiner provided a thorough review and discussion of the claims file, to include the STRs, the January 2011 VA examination, September 2012 VA examination, and November 2018 private examination and medical opinion, and provided a well-reasoned rationale in support of their opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). There is no competent evidence to the contrary. Accordingly, there is no basis to find service connection is warranted. The preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stuedemann, A. 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.