Citation Nr: 21006256 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-23 061 DATE: February 3, 2021 ORDER Service connection for bilateral hearing loss (BHL) is denied. REMANDED An initial rating in excess of 50 percent for PTSD is remanded. Entitlement to a TDIU is remanded. FINDING OF FACT The preponderance of medical evidence weighs against attributing the Veteran’s BHL to noise exposure during service. CONCLUSION OF LAW The criteria for service connection for BHL have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1968 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision. The Veteran raised the issue of TDIU in his June 2014 substantive appeal. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board therefore has jurisdiction over this TDIU claim. These matters were previously remanded by the Board in a May 2018 for further development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. Service connection for bilateral hearing loss (BHL) Legal Criteria For VA purposes, impaired hearing is considered disabling 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 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). To establish service connection, the Veteran is not obliged to show that hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish the causal link between his current disability and his in-service injury (such as acoustic trauma through exposure to loud noise). Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Factual Background & Analysis The Veteran asserts that service connection for BHL is warranted. The Veteran’s military occupational specialty (MOS) during service was infantrymen. Exposure to gunfire, mortars, artillery, helicopters and C130s without ear protection is conceded. There is no evidence of significant post-service occupational noise exposure. The Veteran was provided a VA audiological examination in November 2010 at which time BHL was assessed. The examiner opined that based on the Institute of Medicine Report (Noise and Military Service, November 2005), which concluded that based on current knowledge, noise induced hearing loss occurs immediately (i.e. there is no scientific support for delayed onset hearing loss weeks, months, or years after the exposure event) and there being no significant shift in hearing level during military service and normal hearing was documented at separation, it is less likely as not that the hearing loss is related to military service. In the April 2018 appellate brief, the Veteran’s representative referenced a 2006 study from the Institute of Medicine which appears to support delayed onset hearing loss. He also cited 2009 research findings issued in the Journal of Neuroscience, which indicates that overexposure can cause acute loss of afferent nerve terminals and delayed generation of the cochlear nerve. The Board determined in a 2018 remand that an addendum VA medical opinion must be obtained to address these contradictory findings. On January 2019 VA audiological examination the Veteran exhibited an average puretone threshold decibel loss for the frequencies 2000, 3000, and 4000 Hertz of 26 decibels or greater in both the right and left ears. Accordingly, the Veteran has impaired hearing for VA compensation purposes in the ears bilaterally pursuant to 38 C.F.R. § 3.385. The examiner ultimately determined it to be less likely than not that the Veteran’s BHL was caused by or the result of exposure to acoustic trauma during service. The examiner’s supporting rationale noted that the Veteran’s BHL did not have its onset until many years after service, that there were no symptoms of hearing loss in his service treatment records (STRs) and that there was no positive threshold shift in puretone decibel hearing loss demonstrated in his enlistment and separation audiological examinations. The Veteran was again afforded a VA audiological examination in July 2020, he reported that it is “hard to hear certain sounds” and that is embarrassing to ask people to repeat themselves. The Veteran again exhibited impaired hearing for VA compensation purposes during puretone threshold testing. The examiner provided an addendum opinion addressing the research cited to in the April 2018 appellate brief regarding possible delayed onset hearing loss. He stated that there was no medical relationship between in-service noise exposure and current hearing loss complaints that establishes an in-service incurrence of BHL hearing loss during service. The Veteran’s STRs indicate normal hearing at date of military separation and STRs are negative for hearing loss complaint during time of service. The Veteran’s hearing loss complaint is more than 45 years after his date of military separation in 1970. There have been no peer-reviewed scientific studies that suggest that previously noise-exposed ears are more susceptible to delayed onset hearing loss as suggested by the Veteran or his representative. The examiner continued that the Institute of Medicine Report (Noise and Military Service, 2005), often cited by VA concluded that based upon current understanding of auditory physiology, a prolonged delay in hearing loss onset as a result of hazardous noise is “unlikely.” The Veteran’s representative selectively noted the assertion in this same position paper that, “it is possible, that an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure,” however, there has still been no conclusive research in the past 15 years to support either a delayed onset or acoustic overexposure theory. The examiner further noted that the authors of that document ultimately concluded that “longitudinal data on hearing thresholds at the beginning and end of military service provide the basis for establishing that hearing loss occurred after exposure to noise during military service, a temporal ordering necessary for a causal relationship and estimation of risk.” The examiners ultimately concluded that, based upon lack of current scientific research that would suggest otherwise, it is less likely than not (50 percent probability or less) that the Veteran’s BHL is related to remote military noise exposure. The Board finds the January 2019 and July 2020 VA medical opinions to be the most probative medical evidence of record regarding a nexus between the Veteran’s BHL and noise exposure during service. Particularly, the July 2020 addendum opinion contains a thorough rationale, noting the massive gap in time between noise exposure during service and the Veteran’s diagnosis of BHL. This opinion also addressed the contentions regarding possible delayed onset hearing loss raised in the April 2018 appellate brief, noting that there has been no conclusive research in the past 15 years to support either a delayed onset or acoustic overexposure theory. Moreover, the Veteran has not submitted competent medical evidence from similarly qualified audiology specialists which conflict with the negative nexus findings of the VA examiners of record. The Board has duly considered the Veteran’s lay statements contending that noise exposure during service is the cause of his current BHL disability. However, while the Board is sympathetic to the Veteran’s contentions, he is not competent (medically qualified) to provide a causal nexus opinion in this case, which involves a medically complex question (because there may be multiple possible causes of hearing loss, including genetics and aging, that are not observable factors). Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, under the facts of this case, the Board must give more probative weight to qualified opinions of the VA examiners. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for BHL must be denied. See 38 U.S.C. § 5107; see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND 2. An initial rating in excess of 50 percent for PTSD is remanded. 3. Entitlement to a TDIU A review of the record shows the Veteran has not been examined in conjunction with his increased rating for PTSD claim since April 2014 (over six years ago). Since that time, the Veteran has reported that his PTSD symptoms have worsened in severity. Capturing the current severity of the Veteran’s PTSD disability is crucial to a fair adjudication, consequently a remand is necessary to afford the Veteran a contemporary VA examination. Additionally, the Board finds that the Veteran’s claim of entitlement to a TDIU is inextricably intertwined with the increased rating claim on appeal. Thus, the Board will defer consideration of the claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Then, arrange for the Veteran to be examined by a psychiatrist or psychologist to determine the current severity of his PTSD. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pertinent symptoms, pathology, and impairment associated with such disability in sufficient detail to allow for application of the pertinent rating criteria. Specifically, the examiner MUST indicate whether the Veteran suffers the level of social and occupational impairment. The examiner must also indicate what functional impact the Veteran’s PTSD has on his ability to obtain and maintain substantially gainful employment. 3. Readjudicate the remaining issues on appeal considering the development mandated above. If any the benefit sought on appeal is denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.