Citation Nr: 21006281 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-09 144 DATE: February 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the competent and credible evidence is against finding that the Veteran’s bilateral hearing loss began during active service; manifested to a compensable degree within a year of service with continuity thereafter; or, is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 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 from June 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. This claim was remanded in August 2020 for further development; there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases (such as sensorineural hearing loss), will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. For VA purposes, 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. Entitlement to service connection for bilateral hearing loss is denied. The Veteran is seeking service connection for his bilateral hearing loss disability; he contends that his current hearing loss is related to in-service noise exposure. The question for the Board is whether the Veteran has a current hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of bilateral sensorineural hearing loss, and evidence shows that he had in-service noise exposure; however, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral sensorineural hearing loss began during service or is otherwise related to an in-service injury, event, or disease. Thus, for the reasons that follow, the Board finds that service connection is not warranted. The Veteran’s service treatment records (STRs) are silent for complaints of or treatment for hearing loss. In his August 1978 Report of Medical History (RMH) for separation, the Veteran marked ‘no’ for hearing loss, and his audiogram results showed that he had normal hearing at separation. The Veteran was afforded a VA examination in September 2015. The examiner diagnosed bilateral sensorineural hearing loss consistent with VA disability standards set forth at 38 C.F.R. § 3.385 based on the objective audiometric test results. The examiner opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner explained that although the Veteran’s history of military noise exposure was a factor for hearing loss, a review of the claims file did not document an in-service onset of hearing loss, and there were no significant threshold shifts observed in frequencies. The examiner noted that the Veteran had post-service noise exposure as he worked in a home improvement store with loud forklifts and machinery. The examiner also noted that the Veteran reported a history of diabetes, “which may also be a factor for his hearing loss.” The examiner concluded that due to the lack of documentation for in-service onset of hearing loss or significant threshold shifts during service, and the Veteran presented other factors for hearing loss, it was less likely than not caused by or a result of an event in military service. In June 2019, the Veteran testified at his Board hearing that he did not have post-service noise exposure. He explained that while he was employed at a home improvement store, he initially worked in the paint department and then later, hardware. Nevertheless, he did not work with gas operated forklifts and was not licensed to operate them; additionally, if forklifts were present, they were electric. As the September 2015 VA examiner seemed to partilly base the unfavorable opinion on an inaccurate fact, the Board remanded the issue in August 2020, for a new examination and opinion. Pursuant to the Board remand, the Veteran was afforded a new VA examination in September 2020. The Veteran’s reported in-service noise exposure was noted to include gunfire, generators and artillery. There was no noise exposure reported post-service. The VA examiner opined that the Veteran’s bilateral sensorineural hearing loss was not at least as likely as not related to an in-service injury, event, or disease, including noise exposure from firearms. The examiner’s rationale considered a 2005 Institute of Medicine (IOM) Report for Noise and Military Report which found there to be “no support for noise induced hearing loss to occur as a delayed onset of years from the noise exposure.” Indeed, the examiner’s consideration of this 2005 IOM report in formulating his opinion is questionable, as the report itself contains internal contradictions. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Specifically, the IOM also indicates 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.” However, the Board notes that while the IOM report was considered in the examiner’s rationale, it was not the sole basis of her competent opinion. Rather, it was the combination of other relevant factors such as, the Veteran’s normal hearing per his August 1978 exit audiogram; the lack of a significant shift of hearing during service; and the known effects that the normal aging process as well as other environmental factors has on decreasing hearing over time; the led to her finding. In reviewing the evidence and the examiner’s report, the Board finds that the examiner’s inclusion of the IOM report does not diminish the persuasiveness of her opinion as even without the IOM report, the other factors considered support the examiner’s reasoning for her opinion. Therefore, the Board finds this examiner’s opinion probative. Noting that even if the IOM report was not considered, her rationale would still be based on an accurate medical history and it provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, based on the foregoing, service connection is not warranted. As noted above, sensorineural hearing loss is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. In this case, however, the disability was not shown as chronic during a period of active duty, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records did not reflect a hearing loss disability for VA compensation purposes, and post-service treatment records show the Veteran was not diagnosed with a bilateral sensorineural hearing loss disability until September 2015, which is over 30 years after his separation from service. At his June 2019 Board hearing, the Veteran testified that in service, after leaving the gun range, he noticed his hearing took a few hours to return and sometimes a little longer. He also testified that during service and within a year of his military discharge, he would ask people to repeat themselves due to his difficulty with hearing what was being said if they were not in front of him. Based on the Veteran’s testimony, which appeared to suggest that he experienced problems with his hearing acuity both during service and within the presumptive period, the September 2020 VA examiner was asked to provide an opinion as to whether the Veteran’s bilateral hearing loss manifested within a year of his discharge from military service or was noted during service with continuity of the same symptomatology since service. The examiner opined that it is less likely than not that the Veteran’s bilateral hearing loss (1) manifested within one year of his discharge from service and (2) occurred in service with the same symptomatology. The examiner noted that in addition to the earlier explanation regarding the Veteran’s hearing loss and military service, there was no evidence in the chart or documentation showing that the Veteran’s hearing loss disability manifested within one year of discharge from service or that there was a hearing loss in service with the continuity of the same symptomatology. The Board acknowledges the Veteran’s lay contentions regarding noise exposure in service, and the onset and etiology of his hearing loss. However, his lay opinion that his current hearing loss disability is related to noise exposure in service is not competent. Determining the etiology of a sensorineural hearing loss disability is not a simple medical condition or determination because the diagnosis is based on results of medical testing and clinical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). For these reasons, the Veteran, as a layperson, is not competent to state that his current hearing loss disability, which was initially diagnosed 30 plus years after active duty, is etiologically related to his active duty noise exposure. This is a complex medical determination. Consequently, the Board gives more probative weight to the competent and credible medical evidence in the form of the September 2020 VA examiner’s opinion. While he is competent to report symptoms of decreased hearing acuity since service, the Veteran’s reports of continuity of symptomatology is not credible. Service treatment records show sensorineural hearing loss was not noted during service, and no complaints of hearing trouble or symptoms were noted, to include on the separation examination. Notably, the Veteran affirmatively denied ear trouble and hearing loss on his RMH completed separation. Thus, in this regard, the Veteran’s testimony and March 2015 lay contention seeming to assert continuity of symptomatology is not found credible. For these reasons, presumptive service connection based on either chronicity or continuity of symptomatology is not warranted. As noted earlier, the September 2020 VA examiner’s opinion does not provide a causal nexus between the current hearing loss disability and noise exposure during active duty. This opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. 304 (2008). As there is no favorable, competent and probative medical opinion to the contrary, the preponderance of the competent and probative evidence is against the claim and the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a bilateral hearing loss disability is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.