Citation Nr: A21020470 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 211129-201002 DATE: December 23, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss began during active service or within one year of separation from service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1956 to August 1978, including in the Republic of Vietnam. The rating decision on appeal was issued in July 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In August 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the July 2021 decision. In October 2021 the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2021 decision. In the November 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2021 decision. 38 C.F.R. § 20.301. Service Connection Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss. The Veteran seeks entitlement to service connection for bilateral hearing loss as a result of acoustic trauma while in service. 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). As an initial matter, the July 2021 rating decision made a number of favorable findings. First, the RO found that the Veteran's current condition is considered a chronic disease in which presumptive service connection may apply to and that the Veteran has met the minimum service requirements for presumptive service connection eligibility. Additionally, the RO found that the Veteran has a current disability of bilateral hearing loss for VA purposes and that he was exposed to hazardous noise during military service. The Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). As a result, the first two elements of service connection, a current disability and an in-service event, injury, or illness, have meet met. The question remaining before the Board is whether the Veteran's current bilateral hearing loss is a direct result of the hazardous noise exposure experienced in service. The Veteran has not contended he experienced hearing loss in service or within one year of separation from service. As explained below, the evidence shows the hearing loss was not chronic in service, did not manifest to a compensable degree within the one-year presumptive period after service, and was not noted in service with attributable continuity of symptomatology. On the contrary, the record shows the Veteran was not diagnosed with hearing loss until his October 2020 VA examination provided in the course of seeking service connection. This is approximately 42 years after his separation from service. The Board notes that historically, when interpreting audiometric data from service treatment records, it is important to note that Service Departments changed from using American Standards Association (ASA) standards, to using International Standards Organization American National Standards Institute (ISO-ANSI) standards when providing audiograms beginning at some point between approximately January 1, 1967 and December 31, 1970, however, the conversion date was not consistent between all branches of the Armed Forces. Accordingly, if the standard used is not clearly indicated on the Service Department audiogram(s), it is presumed that prior to January 1, 1967 the ASA standard was used. For in-service audiograms conducted between January 1, 1967 and December 31, 1970, where the standard used is unclear, the data under both ASA and ISO-ANSI standards will be considered. For in-service audiograms conducted after December 31, 1970, it is presumed that the ISO-ANSI standard was used. In this case, the Veteran underwent audiograms in June 1961, March 1964, March 1968, March 1971, November 1976, and June 1978 while in service. For the June 1961 and March 1964 in service audiograms, the Board presumes those examinations were provided under ASA and no conversion is required as they were conducted prior to January 1, 1967. Additionally, for the March 1971, November 1976, and June 1978 audiograms, the Board presumes those examinations were provided under ISO-ANSI and no conversion is required as they were conducted after December 31, 1970. As for the March 1968 audiogram, there was no indication provided as to what standard was used and as a result, the Board will consider the original audiogram as shown in the Veteran's service treatment records and once converted to ISO-ANSI. The Board will use the audiogram most favorable to the Veteran. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 ADD 15 10 10 10 5 The March 1968 audiogram, as documented in the Veteran's service treatment records, shows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 N/A 10 LEFT 0 0 5 N/A 5 The ASA to ISO-ANSI converted March 1968 audiogram shows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 N/A 10 LEFT 15 10 15 N/A 5 As demonstrated above, even when converted from ASA to ISO-ANSI, the March 1968 audiogram still does not show hearing loss in service for VA purposes. Additionally, the Veteran's ears and drums were noted as normal consistently on his in-service examinations from June 1961 to June 1978. The Veteran's ears were also noted as normal in an August 1961 in service clinical record. The Veteran asserted "trouble with his ears" in April 1969 to which the provider cleaned and irrigated the Veteran's ears. There are no additional notations of ear trouble from the Veteran while in service. In his June 1978 retirement examination, the Veteran's ears and drums were noted to be normal and no hearing loss for VA purposes was found. Additionally, the Veteran underwent a VA examination in October 2020 in which the Veteran reported his hearing loss onset approximately 10 years prior to the date of examination. This would place the onset of the Veteran's hearing loss approximately 32 years after his separation from service. Neither the converted nor unconverted audiograms show hearing loss for VA purposes in service. In the absence of hearing loss shown as chronic in service and considering the fact that he has not reported onset within one-year or continuity of symptomatology, there is no indication the Veteran's hearing loss manifested during service, within one year of separation from service, or with continuity of symptomatology since service. As a result, service connection is not warranted on a presumptive basis. Service connection for hearing loss may still be granted on a direct basis. The Veteran underwent a VA examination in October 2020 in which the examiner concluded his current hearing loss was not a result of his in-service noise exposure. The examiner stated that the Veteran's June 1961 entrance and June 1978 separation examinations were both normal and did not show hearing loss for VA purposes. The examiner noted some threshold shifts from entry to separation but concluded by stating there is no evidence to support a nexus between his current hearing loss and military noise exposure rather than another etiology. However, the Veteran did not report any additional hazardous noise exposure after his separation from service. As a result, the RO sought clarification of this opinion in July 2021. In July 2021, the VA examiner again stated that the Veteran's current bilateral hearing loss was not a result of hazardous noise exposure in service. The examiner clarified that there is no clinical hearing loss shown in service. The examiner asserts that the first showing of hearing loss in the Veteran's record came during the October 2020 VA examination, 42 years after service. The examiner stated, "it is unlikely a delayed noise induced hearing loss would occur 42 years later." Additionally, the examiner noted that noise induced hearing loss is typically greater at the frequencies between 4000 Hertz and 6000 Hertz versus at 500 Hertz to 2000 Hertz with hearing loss the greatest at 4000 Hertz. The examiner cites to medical literature to support this assertion. The Veteran's current low to mid frequency hearing loss is not indicative of noise exposure but rather the results of the October 2020 VA examination are more "consistent with age-related hearing loss." Then, citing to additional medical literature, the examiner stated, It is apparent that hearing loss is greatest in the highest frequencies initially, and at older ages, the hearing loss is still worse at the highest frequencies, but lower frequencies are also affected. Again, the audio C&P exam is conducted 42 years post-active-duty service. 'There is insufficient evidence to conclude that hearing loss due to noise progresses once the noise exposure is discontinued. Nevertheless, on the basis of available human and animal data, which evaluated the normal recovery process, it is unlikely that such delayed effects occur.' In summary, the examiner concluded that the Veteran's hearing loss is a result of his age rather than a result of the hazardous noise he experienced while in service. The Board notes that the March 1968 converted audiogram was not considered by the October 2020 or July 2021 VA examiners. However, the basis of the VA examiner's negative opinion is not reliant on threshold shifts in service. Rather, it is based on a lack of evidence from separation from service to the present concerning hearing loss in the higher frequencies that would attribute his hearing loss to hazardous noise rather than age. The Veteran's retirement examination from June 1978 shows the Veteran's recorded hearing loss at 4000 Hertz to be 20 decibels in the right ear and 25 decibels in the left ear. The converted March 1968 audiogram shows less hearing loss at 4000 Hertz than at separation. As a result, the Board does not find a remand for consideration of the converted March 1968 audiogram is warranted. The Board finds that the October 2020 VA examination and July 2021 addendum opinion, when read together, are probative, as they provided a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the Board does not doubt the sincerity of the Veteran's belief that his bilateral hearing loss is related to his service. However, he is not medically competent to provide a nexus opinion in this case. There is no indication he has specialized medical training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hearing loss is a matter not capable of lay observation and requires medical expertise to determine. Thus, the Veteran's own opinion regarding the etiology of his hearing loss is not competent medical evidence, no matter how sincere. In sum, the preponderance of the competent, credible, and probative evidence of record is against finding the Veteran's hearing loss arose in service or for many years thereafter and is against a finding that it is related to acoustic trauma in service. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.