Citation Nr: 21006384 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-01 687 DATE: February 4, 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 has bilateral sensorineural hearing loss due to a disease or injury in service, to include acoustic trauma; and such was not manifested in service or the first post-service year. CONCLUSION OF LAW The criteria for service connection for bilateral sensorineural hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1966 to March 1969. In January 2018 and July 2020 the Board remanded the issue on appeal for additional development. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the remand orders and no further action is necessary in this regard. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, to include sensorineural hearing loss (SNHL) (as an organic disease of the nervous system), may be presumed to have been incurred or aggravated in service, if they are manifested to a compensable degree within a specified period of time post-service (one year for SNHL). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Service connection may also be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; 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, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that his bilateral hearing loss is due to acoustic trauma in service. Specifically, he reported rifle and aircraft noise during service. The evidence is not in dispute as to whether the Veteran currently has a hearing loss disability. An audiogram from January 2018 as well as a VA examination in August 2019 contain audiometry results that clearly establish a diagnosis of sensorineural hearing loss. Moreover, the Veteran is perfectly competent to report exposure to loud noises during service, and the Board finds no reason to question the veracity of such allegations. As such, hazardous noise exposure in service is conceded. However, the Veteran’s service treatment records are silent for any complaints, treatment, or diagnoses related to hearing loss in service, and there is no other evidence or allegation suggesting that such disability first manifested in service. Therefore, service connection for hearing loss on the basis that it began in service and persisted is not warranted. Similarly, there is no evidence that the Veteran developed a hearing loss disability within the first post-service year. Thus, service connection for hearing loss on a presumptive basis (under 38 U.S.C. § 1112) is also not warranted. Consequently, what must be shown to substantiate the Veteran’s claim is that his current hearing loss disability is otherwise related to service or hazardous noise exposure therein. Whether such a relationship exists is a medical question beyond the scope of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The record contains several medical opinions regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to an in-service injury, event, or disease. Unfortunately, they are all negative and there are no contrary opinions of record. In June 2014 and December 2015, the Veteran underwent VA audio testing. The June 2014 examiner noted that the Veteran’s responses were inconsistent and unreliable. The examiner also noted that when the Veteran was reinstructed, his responses did not improve and therefore the testing was terminated. The December 2015 examiner also found that the test results were inconsistent and inter-test reliability was poor. The examiner noted that the Veteran was reinstructed but the results remained inconsistent. Therefore, the examiner determined the test results were invalid and unreliable and therefore they could not be reported. In January 2018 the Veteran underwent a private audiogram. As previously noted, the audiogram showed that the Veteran has bilateral sensorineural, however the examiner provided no etiological opinion. In February 2019 a clarification opinion was obtained. The examiner noted a review of the notes from the Veteran’s December 2015 examination. The examiner found that the Veteran was malingering during the examination and an accurate measure of hearing was not able to be obtained. However, the examiner also noted that case history information was not reported. The examiner found that an opinion regarding the Veteran’s auditory status could not be offered without resorting to speculation. The examiner further found that if an opinion was to be offered, then the examiner recommended that the Veteran return to the VA clinic for a new examination, counseled on his ability to be compliant with test procedures, and additional testing completed. Only if testing was considered reliable could an opinion be offered. In August 2019, the Veteran underwent a VA hearing loss and tinnitus examination with an accompanying disability benefits questionnaire (DBQ). Audio testing was conducted and the puretone thresholds in decibels were: 500 1000 2000 3000 4000 6000 8000 Avg Right 30 25 45 80 85 85 95+ 59 Left 50 50 70 75 80 90 95+ 69 Speech discrimination scores were 96 percent in the right ear and 82 percent in the left ear. The examiner confirmed that the Veteran had bilateral sensorineural hearing loss. The examiner found that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner provided the rationale that the Veteran entered service with normal hearing and at exit there was no separation exam. He reported that his position in service was a guard on an aircraft carrier. His position held a moderate probability of noise. The examiner found that prior to service and upon leaving service, the Veteran worked as a carpenter where he was still employed after 60 years. The Veteran admitted to HPD usage only within the later years of his employment. Therefore, the examiner found that it was less likely than not that hearing loss was related to military service and more likely a result of extensive occupational noise exposure. In August 2020 an addendum opinion was obtained. The examiner noted that he reviewed the Veteran’s statements and service treatment records and also noted that during the August 2019 examination, separation hearing testing was not found. However, the August 2020 examiner found that upon further review, hearing testing dated in February 1969 was located. The examiner noted that the February 1969 testing revealed normal hearing at separation. Therefore, the examiner noted that the Veteran entered and left the service with normal hearing. Furthermore, the examiner noted that prior to and after leaving service, the Veteran worked as a carpenter for over 60 years and the Veteran admitted to wearing hearing protective equipment only within the later years of employment. The examiner found no evidence of hearing loss manifested to a compensable degree within the applicable presumptive period. Therefore, the etiology of the Veteran’s hearing loss is less likely related to military service and more likely a result of six decades of extensive occupational noise exposure. In September 2020 an additional addendum opinion was obtained. The examiner noted that the Veteran’s electronic medical records and service files were reviewed. All electronic records of hearing testing that could be found in the Veteran’s electronic file were reviewed along with other pertinent evidence. During the review, the examiner noted that exposure to excessive noise during military service had been conceded. However, the review of the Veteran’s service records documented that the Veteran both entered and exited service with normal hearing. The examiner found that the Veteran’s hearing was unaffected by conceded exposure to noise per this evidence and despite the Veteran’s lay statements provided decades after his separation from service, confirms that the Veteran’s hearing loss did not begin in service. The examiner noted the 2006 Institute of Medicine report Noise and Military Service-Implications for Hearing Loss and Tinnitus. The study found that there was no scientific basis on which to conclude that hearing loss appeared years after noise exposure. The examiner noted that the study remains the definitive consensus in the matter. Therefore, the examiner found that the Veteran’s hearing loss was less likely than not etiologically related to exposure to noise while in service. The August and September 2020 VA examiners opined that the Veteran’s hearing loss was not related to his service. The rationale was that the Veteran’s hearing was normal at his service entrance and separation and hearing loss did not develop for many years following his separation. Furthermore, they found that it was more likely that the Veteran’s hearing loss was a result of six decades of extensive occupational noise exposure. The VA examiners’ opinions are probative, because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, the Board notes that there are no contrary opinions of record. While the Veteran believes his bilateral sensorineural hearing loss is related to an in-service injury, event, or disease, including acoustic trauma, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board gives more probative weight to the VA examiners’ opinions and the medical evidence of record. For these reasons, service connection for bilateral   sensorineural hearing loss on the basis that it is related to service, including hazardous noise exposure, is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.