Citation Nr: 21007389 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-31 800 DATE: February 9, 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 (left and right ear) hearing loss began during his active military service, within a year of his discharge, or is otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137. 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 March 1984 to January 1988. In October 2016, the Veteran testified in support of this claim during a videoconference hearing before a Veterans Law Judge (VLJ) of the Board. A transcript of the proceeding is of record. Because that VLJ is no longer employed at the Board, since having retired, in a December 2020 letter the Veteran was offered another hearing with another VLJ that ultimately would decide this appeal. That letter made clear that, if the Veteran did not respond within 30 days from the date of that letter, the Board would assume he did not want another hearing and proceed with adjudication of his appeal. Having not received a response, the Board is doing just that. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Board most recently remanded this claim in August 2020 for an addendum medical opinion concerning the origins of the Veteran’s bilateral hearing loss, especially in terms of whether related or attributable to his service when considering specific clinical findings from hearing evaluations during his service the Board determined are potentially noteworthy. The requested development on remand has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board may proceed to adjudicating this claim. Entitlement to service connection for bilateral hearing loss The Veteran contends that service connection is warranted for bilateral hearing loss because it is the result of being exposed to constant noise while serving on the flight deck as a signalman. See October 2012 Substantive Appeal, on VA Form 9. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish direct service connection, there must be the existence of a present disability, in-service incurrence or aggravation of a relevant disease or an injury, and a causal relationship (“nexus”) 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 for certain chronic diseases, including an organic disease of the nervous system such as sensorineural hearing loss, may be established on a presumptive basis by showing the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed to have incepted in service even though there is no evidence of the disease during the period of service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court, where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). Here, it is not in dispute that the Veteran has sufficient hearing loss in each ear, so bilaterally, to be considered a ratable disability for VA compensation purposes –meaning he has sufficient hearing loss in each ear to satisfy the threshold minimum requirements of § 3.385. Resolution of this appeal therefore turns, instead, on whether there also is the required attribution of this bilateral hearing loss disability to the Veteran’s service, including especially to the noise trauma he cites as the source or cause of this disability. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). The Board finds, unfortunately, that the preponderance of the evidence is against the Veteran’s claim for service connection for his bilateral hearing loss because there is not this required attribution. During the pendency of this appeal, the principal medical evidence material to the Veteran’s claim for service connection is contained in the reports of a December 2011 VA examination and April 2019 and September 2020 addendum medical opinions. The remainder of the medical treatment records in the file contain no evidence materially inconsistent with the findings of those reports as they relate to his disability and its origins. The December 2011 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to his military service because he had normal auditory thresholds bilaterally from 500-6000 Hertz at both enlistment and separation from service. The examiner stated that no clinically significant threshold shifts (worsening) were noted when comparing results of the separation exam with results of the enlistment exam for either ear. However, the Veteran’s service treatment records (STRs) include an audiogram dated in January 1986 indicating a finding of 25 decibels at 3000 Hertz for his right ear. In addition, the separation report of medical examination shows a finding of 25 decibels at 2000 Hertz concerning his left ear. Hence, some degree of hearing loss was demonstrated in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (a finding above 20 decibels indicates some level of hearing impairment). And, as the December 2011 VA examiner did not address the demonstrated presence of some degree of hearing loss in service, the Board remanded the Veteran’s claim in June 2017 to obtain a supplemental medical opinion addressing those findings in service. Consequently, an addendum medical opinion was obtained in April 2019. The examiner explained that the Veteran’s hearing remained stable (no clinically significant threshold shifts) in both ears when comparing enlistment and separation audiograms. Although hearing was 25 decibels at 2000 Hertz in the left ear at separation, a 5-decibel threshold shift (from 20 decibels at enlistment to 25 decibels at separation) is not considered clinically significant. In support of her findings, the examiner cited to a 2006 Institute of Medicine (IOM) study concluding there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure (“delayed-onset”). The IOM panel concluded that, based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was “unlikely”; therefore, the examiner determined there was no evidence to conclude the Veteran’s current hearing loss was caused by, or a result of, his military service – including noise exposure. But even following that April 2019 VA medical opinion, the Board again remanded the Veteran’s claim in August 2020 because the examiner had referenced the 25 decibels reading in the left ear upon separation but did not also discuss the 25 decibels reading referable to the right ear. Moreover, the Board determined the examiner’s rationale had focused on the lack of a clinically significant shift during service in regards to the left ear but did not discuss the fact that the January 1986 finding of a puretone threshold of 25 decibels at 3000 Hertz in the right ear represents a downward shift of 20 decibels when compared to the February 1984 entrance examination. Another addendum medical opinion resultantly was obtained in September 2020. The examiner reiterated that entrance to separation did not indicate that any threshold shifted more than 5 decibels, and no threshold has varied by 15 decibels or more, which would indicate a significant threshold shift that is beyond test-retest reliability. Although hearing in the right ear did fluctuate from 5 to 25 decibels during the January 1986 audiogram, it had an improved threshold of -5 decibels in May 1987, indicated an improvement of 35 decibels from January 1986 to May 1987 at 3000 Hertz in the right ear. This examiner explained that fluctuations in hearing due to many reasons (middle ear status, headphone placement, cerumen buildup, temporary threshold shift) are common in service, which is why entrance and separation audiograms are compared, to allow for fluctuations to occur that are not permanent. The threshold at 2000 Hertz in the left ear was initially 20 decibels at entrance, with a slight change to 25 decibels at separation from service, which is within test-retest reliability and not considered a significant threshold shift. In consequently concluding the Veteran’s bilateral hearing loss is unrelated to his service, the Board has considered his statements made in support of his claim. He has not, however, demonstrated any specialized knowledge or expertise to indicate he is capable of rendering a competent medical nexus opinion regarding the determinative issue of causation. He is competent to report his hearing difficulties, but his lay contentions as to etiology are outweighed by the aforementioned medical opinions rendered by trained medical professionals and based upon a claims file review and an examination of him, with full consideration of his lay contentions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Furthermore, the Board finds that the Veteran’s lay statements about the onset and etiology of his bilateral hearing loss have minimal probative value because they directly contradict the other lay evidence of record, in which he indicated that he thought his difficulty hearing in his right ear stemmed from possibly perforating his tympanic membrane (eardrum) in July 2005, so well since his service, while using an ear syringe to remove ear wax. See, e.g., October 2006 Primary Care Note; December 2006 Audiology Note. Accordingly, the Board finds that the elements of service connection have not been met. The most probative (meaning most competent and credible) medical and other evidence does not show the required relationship or correlation between the Veteran’s bilateral hearing loss and his military service. Furthermore, the Board also finds that presumptive service connection is not warranted because there is no evidence that he had bilateral sensorineural hearing loss to a compensable degree within one year of separating from service, so by January 1989. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Since, for these reasons and bases, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and this claim of entitlement to service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.