Citation Nr: A21019136 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 200904-107248 DATE: December 1, 2021 ISSUE Entitlement to service connection for bilateral hearing loss disability. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss disability is related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 on active duty in the United States Army from August 1967 to August 1969. This case is being reviewed according to the appellate process set forth under the Veterans Appeals Improvement and Modernization Act of 2017 (hereinafter the "Appeals Modernization Act" (AMA)). This law creates a new framework for Veterans dissatisfied with Veteran's Affairs (VA) decision on their claim to seek review. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2020 rating decision from the local VA Regional Office (RO). In May 2020 the Veteran submitted a Decision Review Request to the Board and selected the Direct Review option by a Veterans Law Judge. Under the Direct Review Docket, the Board is prohibited from considering evidence submitted after the August 2020 rating decision. Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service, if they manifest within a specified time period following service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339 ), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that he is entitled to service connection for his bilateral hearing loss disability due to acoustic trauma that he suffered during active- duty service, especially combat service in Vietnam. In his military occupational specialty as a Light Weapons Infantryman, the Veteran has alleged that he was often exposed to loud noises and explosives and did not wear ear protection. The Veteran's DD-214 reflects that he received the Combat Infantryman's Badge. The Veteran claims that he began to experience chronic hearing loss during service and that his bilateral hearing loss disability has continuously caused limitations for him since discharge. First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability that comports with VA's definition of disability resulting from hearing impairment. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 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. Next, the Board recognizes that in the August 2011 rating decision service connection for tinnitus was established as due to exposure to acoustic trauma; thus, exposure to acoustic trauma in service is conceded. As such, the Board finds that noise exposure in service has been shown. See 38 C.F.R. § 1154(a). Turning to the evidence of record, the Board notes that the Veteran's service treatment records (STRs) show that during his August 1967 enlistment examination audiogram the examiner noted that the Veteran had high frequency hearing loss in his right ear. His left ear showed normal hearing. The Veteran's June 1969 separation examination showed normal hearing in both ears. The Veteran was first afforded a VA examination for his bilateral hearing loss disability in July 1977. The examiner noted that the Veteran's June 1969 separation examination showed normal hearing bilaterally. The July 1977 examination indicated normal hearing bilaterally from 250Hz-2000Hz, and above 2000Hz the examiner noted that there was profound high frequency hearing loss on the right side and mild to moderate hearing loss on the left side. For the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 10, 10, 5, 65, and 95 for the right ear, and 5, 10, 15, 45, and 65 for the left ear. Maryland CNC testing was 90 percent in both ears. The puretone threshold average was 45 decibels for the right ear and 34 for the left ear. The examiner noted that the high frequency of the sensorineural hearing loss was consistent with the Veteran's reported history of noise exposure but without a review of the medical records she was unable to say if or how much hearing loss was present at discharge from service. VA treatment records contain an October 2010 audiology consult note. At that time the examiner reported his history of noise exposure to include his claimed military noise exposure, exposure in his civilian occupation as an electrician as well as exposure to recreational automotive noises with no ear protection. The examiner diagnosed steeply sloping asymmetric high frequency sensorineural hearing loss, with the right ear being poorer. The examiner noted that puretone results were revealed to be within normal limits in the right ear from 250-2000Hz, steeply sloping to severe sensorineural hearing loss at 3000-8000Hz. The left ear was within normal limits from 250-1500Hz with mild sensorineural hearing loss at 2000Hz, sloping to moderately-severe to severe at 3000-8000Hz. The examiner also recorded that the Veteran's word recognition score was excellent. In March 2011 the Veteran attended another VA audiological examination. At that time the Veteran reported difficulties hearing speech and noise while in groups. Examination revealed bilateral sensorineural hearing loss, with both ears showing severe to profound high sensorineural hearing loss at 3000 -8000Hz in the right ear and mild to severe high frequency sensorineural hearing loss at 2000-8000Hz in the left ear. For the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 25, 25, 25, 80, and 105 for the right ear, and 20, 20, 35, 60, and 80 for the left ear. Maryland CNC testing was 94 percent for the right ear, and 80 for the left. The puretone threshold average was 59 decibels for the right ear and 49 for the left ear. The examiner opined that it was less likely than not that the Veteran's hearing loss was increased by military noise exposure, but that it was increased by the natural progress of the disease. The examiner stated that upon review of the claims file, pre-existing high frequency hearing loss in the right ear and normal hearing in the left ear was noted at induction. At the time of separation, the examiner explained that the hearing thresholds were within the normal range with no significant threshold shifts indicated. The examiner cited to the 2005 Institute of Medicine study which states that there is no scientific evidence to support delayed onset of noise- induced hearing loss. The Veteran submitted a June 2018 private hearing evaluation, which was added to the claims file in July 2018. The Veteran reported difficulty hearing when he returned from combat in Vietnam. The examiner, an audiologist, indicated that the Veteran's test results revealed mild to moderate (250-2000Hz) steeply sloping to profound sensorineural hearing loss in the right ear and a mild to moderate (250-2000Hz) sloping to severe sensorineural hearing loss in the left ear, with word recognition being poor bilaterally. The examiner reviewed an October 2017 audiological treatment note from VA treatment records which revealed that the Veteran's hearing severity was similar to that of his October 2010 evaluation, though there was a decline in the thresholds at 250-1500Hz. The examiner compared the October 2017 results to her current evaluation and opined that it was as least as likely as not that the acoustic trauma that the Veteran experienced during his military service contributed to his hearing loss. The Veteran was afforded a new VA audiological examination in August 2018. The examiner noted that she reviewed the claims file, however in her notes on the evidence reviewed she indicated that she had not reviewed the Veteran's August 1967 service entrance audiological examination. The Veteran reported that he began to experience hearing loss in 1968. The examiner continued the diagnosis of bilateral sensorineural hearing loss. For the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 50, 50, 55, 100, and 105 for the right ear, and 55, 50, 60, 75, and 85 for the left ear. Maryland CNC testing was 88 percent for the right ear, and 84 percent for the left. The puretone threshold average was 78 decibels for the right ear and 68 for the left ear. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was due to his active- duty service. In providing a rationale the examiner stated that the Veteran had normal hearing at separation with thresholds too low for any permanent significant shift in hearing thresholds to have occurred from entrance. The examiner explained that this was evidence of no permanent auditory damage on active duty. The examiner also noted that the Veteran did not report any decrease in hearing in his claims file or at separation. The examiner stated that although noise exposure was conceded and the relationship between noise and hearing loss is well documented, hearing loss and auditory damage are not conceded based on noise alone and therefore a nexus is not established. Also of record is a December 2019 private medical opinion from Dr. S.J., an otolaryngologist. Upon examination of the Veteran, Dr. S.J. reported that audiological results revealed hearing sloping from mild to severe sensorineural hearing loss in the left ear and mild to profound sensorineural hearing loss in the right ear. The examiner wrote that in his professional opinion the Veteran's hearing loss was the result of acoustic trauma from military noise exposure. In June 2020 another opinion from Dr. S.J. was added to the claims file. Dr. S.J. wrote that after reviewing additional records provided from the Veteran from the 1960's, it was his opinion that the Veteran's hearing loss was the result of a combination of both noise exposure and the aging process. The examiner did note that it was more likely than not that the majority of the hearing loss was due to the Veteran's noise exposure in the military. In providing a rationale, the examiner explained that it is a well- known fact that even ambient noise, let alone heavy noise will lead to a loss of inner ear hair cells, which then can result in hearing loss. The Board notes a mix of opinions but finds the March 2011 and August 2018 VA audiologists' opinions to be of lesser probative weight. First, the Board notes that the March 2011 opinion was conclusory in nature with no specifics as to the reasoning of the negative opinion. The Board notes with emphasis that the Court has previously noted in other similar cases that IOM report upon which the VA examiner relied and cited that a medical text must do more than just provide speculative generic statements about a disability or the relationship between the disability and purported causal factors. See, e.g., No. 17-1875, p. 11, 2019 U.S. App. Vet. Claims (June 18, 2019) (unpublished) (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). Furthermore, an excerpt from a generic medical text that does not apply medical principles regarding causation or etiology to the facts of the individual Veteran's case generally won't provide sufficient evidence, standing alone, to serve as the basis for an award of service connection. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board notes from the IOM report itself that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." IOM Report, supra at 151-152, available at www.nationalacademies.org/hmd/Reports/2005/Noise-and-Military-Service-Implications-for-Hearing-Loss-and-Tinnitus.aspx. (Emphasis added.) The Board finds here that the March 2011 VA examiner's reliance on general statements from an extensive medical study to the particular facts of this Veteran's case is overly broad and not specific enough to provide any reasonable support of the VA examiner's opinion. To be adequate, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In looking to the August 2018 VA examination, the examiner opined that the Veteran's current hearing loss disability was not related to service, stating that there was no evidence of permanent significant shifts at any levels while on active duty. To this extent the Board finds this opinion inadequate as the examiner failed to consider that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Furthermore, the Board notes that the August 2018 VA audiologist relied on factually inaccurate information when reaching her opinion. Though she noted that she reviewed the claims file, she also indicated on her report that the Veteran's file did not contain an entrance audiogram and that the Veteran did not have right ear hearing loss prior to service. She also makes no reference to the March 2011 VA examination in which the examiner did in fact conclude that the Veteran had pre-existing right ear hearing loss. Furthermore, the examiner failed to consider the Veteran's lay statements as to the onset of his hearing loss. The examiner notes that there were no reports of hearing loss in the claims file, however the examiner does not appear to consider the Veteran's lay statements that his hearing loss began in 1968 and has continued since then. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 204 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154 (a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. As the August 2018 VA opinion fails to account for the Veteran's lay statements of chronicity of symptoms of hearing loss, the Board finds this opinion less probative. On the other hand, the positive opinions offered by Dr. S.J. in June 2020 specifically noted a review of the Veteran's records and his conclusion was reached after his own examination of the Veteran and therefore his opinion is considered to be of strong probative value. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). Importantly, there is no reason to doubt the credibility of the Veteran's self-reported history of exposure to excessive noise during service, and experiencing a hearing loss during, and since, service. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Also, importantly, the pertinent law provides that, whereas here, the veteran was engaged in combat with the enemy while in active service, the Secretary shall accept lay or other evidence as sufficient proof of service connection if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b); see Reeves v. Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). The record establishes the Veteran has current hearing loss considered disabling for VA purposes, and the Board has conceded hazardous noise exposure while in service. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. Competent evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, both the private audiology examinations and the VA examinations establish the presence of bilateral hearing loss. In-service noise exposure is conceded. For the reasons explained above, the Board finds the March 2011 and August 2018 VA opinions to be of limited probative value. The Board finds that there is credible evidence of symptoms of hearing loss in service and continuity of symptoms since service. There is evidence of noise exposure in service. Lay statements from the Veteran point to continuity of hearing problems for the Veteran since service. When there is an equipoise of evidence, as here, the Veteran prevails on his claim. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to his military service. As such, the Board finds a grant of service connection for a bilateral hearing loss disability is appropriate. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.