Citation Nr: 21005480 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-03 449 DATE: February 1, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1962 to September 1966 and from October 1972 to January 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2010 by a Department of Veterans Affairs (VA) Regional Office. In October 2013 and April 2015, the Board remanded the instant claim for additional development and denied it in a June 2017 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a May 2018 Joint Motion for Remand (JMR), the Court vacated the June 2017 Board decision and remanded the issue to the Board. In January 2019 and July 2020, the Board remanded the case for additional development and it now returns for further appellate review. 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that high frequency sensorineural hearing loss is considered an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. The Veteran claims that he currently has bilateral hearing loss as a result of exposure to gunfire and aircraft noise during his military service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss. Nevertheless, VA has acknowledged that his reported in-service noise exposure is consistent with his military occupational specialty of Air Police. Additionally, VA audiometric testing revealed bilateral hearing loss as defined by VA regulation during the pendency of the appeal. Thus, the remaining inquiry is whether such disorder is related to the Veteran’s acknowledged in-service noise exposure. As noted in the January 2019 and July 2020 Remands, the Court found the August 2015, November 2015, and May 2016 medical opinions upon which the Board previously relied to deny the Veteran’s claim to be inadequate due to their inconsistencies with each other. Additionally, in the latter Remand, the Board found that the VA otologist who provided addendum opinions in November 2019 and December 2019 improperly relied solely on the absence of documented hearing loss until 2007 and did not address the possibility of delayed onset hearing loss as raised by a medical treatise of record. Thus, the Board remanded the issue to obtain an addendum opinion addressing such matters. In July 2020, the VA otologist who provided the November 2019 and December 2019 opinions reviewed the record and opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of such opinion, he again noted the Veteran had normal hearing upon military separation in 1974, and hearing loss was not documented until 33 years later in 2007. The VA otologist also reviewed the medical treatise and found it lacked probative value as such described findings in mice and pigs rather than humans. In December 2020, the same VA otologist provided an addendum report wherein he acknowledged the Veteran’s noise exposure during military service; however, he found that when hearing loss was first documented in 2007, such was a mixed hearing loss consistent with otosclerosis, a middle ear pathology not attributable to noise exposure. Additionally, the VA otologist again noted the aforementioned medical treatise was based on results in mice and, therefore, such findings could not be assumed to be consistent with human studies. Further, he observed that the study itself concluded that “progressive consequences of noise exposure are more widespread.” In this regard the VA otologist found that the findings in mice were noted to be after eight weeks, whereas delayed noise exposure in humans presented 20 to 30 years later was more likely than not more strongly related to aging, hereditary factors, additional noise exposure, and middle ear pathology. Moreover, he cited the National Institute of Medicine’s study stating there is “little evidence available to address whether or not hearing loss and tinnitus progression after noise exposure ends or whether noise-induced hearing loss can develop several months or years after the noise exposure has ended” and that “no longitudinal studies have examined patterns of hearing loss in noise-exposed humans”. As a result, he ultimately opined it was less likely than not that the Veteran’s bilateral hearing loss was related to his military service. Upon review, the Board affords great probative value to the VA otologist’s July 2020 and December 2020 opinions, when considered together, as such were based on a review of all of the pertinent evidence of record, to include the lay statements and the Veteran’s relevant medical history, and pertinent medical literature, and provide a complete rationale, relying on and citing to the records reviewed. Moreover, the VA otologist offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The opinions are also consistent with the contemporaneous medical evidence of record, to include the Veteran’s service treatment records and post-service treatment records, and contemplates his specific circumstances. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). Furthermore, there is no medical opinion to the contrary. In reaching this determination, the Board acknowledges that the VA otologist relied, in part, on an Institute of Medicine study that has qualifying or contradictory statements. McCray v. Wilkie, 31 Vet. App. 243 (2019). However, the Board finds that such does not render the opinion inadequate or diminish its probative value. In this regard, the Board notes that the report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the report’s own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the Institute of Medicine was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (“unlikely”). The Board has considered the Veteran’s statements that his bilateral hearing loss is related to his acknowledged in-service noise exposure; however, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. 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 such disorder is a matter not capable of lay observation. Rather, such requires medical expertise to determine. Specifically, the question of the diagnosis and etiology of hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it requires the administration and interpretation of audiological testing and knowledge of the impact noise exposure has on the inner ear. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his bilateral hearing loss is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that bilateral hearing loss manifested to a compensable degree within one year of the Veteran’s separation from active duty. In this regard, his January 1974 separation examination revealed normal hearing acuity, and he denied currently or previously experiencing hearing loss at such time. In addition, the medical evidence of record does not reflect a diagnosis of bilateral hearing loss until 2007. Although the Veteran has reported a gradual onset of symptoms dating back to service, the medical evidence of record indicates he first complained of relevant symptomatology in 2007 and was issued initially hearing aids soon thereafter. Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed bilateral hearing loss is a matter that also requires medical expertise to determine. Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Thus, the Board finds presumptive service connection for bilateral hearing loss, to include on the basis of a continuity of symptomatology, is not warranted. In conclusion, the Board finds that bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.