Citation Nr: 21008461 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 13-21 644 DATE: February 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. INTRODUCTION The Veteran served on active duty from October 1989 to October 1992. This matter comes before the Board of Veterans Affairs (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The Board remanded this claim in December 2016, October 2017, December 2018, and August 2020, for additional development. After the most recent remand, the RO re-adjudicated the Veteran’s claim and issued an October 2020 supplemental statement of the case. The appeal has been remitted to the Board of further appellate review. FINDING OF FACT The preponderance of the evidence is against finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease, and is against finding that bilateral hearing loss is secondary to service-connected disability, to include prescribed medications. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminarily, the Board remanded the Veteran’s claim in August 2020 in order to obtain a supplemental opinion regarding service connection on a secondary basis with respect to the medications prescribed to treat the Veteran’s service-connected disabilities. An opinion addressing this aspect of the Veteran’s claim was obtained by the RO in October 2020. As such, the RO substantially complied with the remand directive and, thus, a remand for corrective action is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board will address the merits of the Veteran’s claim herein. The Veteran asserts and/or the evidence of record reasonably raises entitlement to service connection under three theories: (1) a pre-existing bilateral hearing loss was aggravated beyond its natural course during active duty; (2) current bilateral hearing loss was incurred in or due to active duty; and (3) current bilateral hearing loss was caused or aggravated by service-connected disability, to include prescribe medication. The evidence of record includes a current diagnosis of bilateral hearing loss. 38 C.F.R. § 3.385; see Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran’s April 1989 enlistment examination included an audiological evaluation. The obtained puretone thresholds demonstrate decreased hearing acuity at 2000 and 3000 Hertz, bilaterally. Despite these findings, the examiner did not render a diagnosis of bilateral hearing loss, and these audiometric findings do not otherwise satisfy VA’s regulations as to the presence of bilateral hearing loss. 38 C.F.R. § 3.385. Consequently, the Board finds that a bilateral hearing loss disability did not pre-exist the Veteran’s active duty and was not noted on enlistment into active duty. As such, the Veteran’s claim is not for in-service aggravation of a pre-existing disability, but in-service incurrence. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran’s military occupational specialty was Single Channel Radio Operator. Further, his DD-214 demonstrates that he earned a Parachute Badge and a M16 Sharpshooter Badge. The Veteran also testified in July 2016 that he was exposed to loud and excessive noise, to include howitzer operations during Desert Storm and Desert Shield. Consequently, the Board finds that evidence establishes that the Veteran was exposed to acoustic trauma during his active duty. The Veteran was provided with several VA examinations during the pendency of this appeal in order to obtain an opinion as to whether the Veteran’s current bilateral hearing loss was etiologically related to his in-service noise exposure. On each of these occasions, the examiner rendered a negative etiological opinion as to whether bilateral hearing loss was incurred in or due to his active duty. In support of these opinions, for example, the November 2019 VA examination provided the following rationale: A comparison of enlistment and separation audiometrics revealed that there were no significant in-service threshold changes…as a change of 10 [decibels] is not audiometrically significant and could be attributed to normal measurement error. A significant change in hearing is defined as a change greater than normal measurements (i.e., greater than 10 [decibels]). [VA] will concede a change of 15 [decibels] or more at any frequency 1000-4000 [Hertz]. Therefore, it is less likely as not that this Veteran’s hearing loss is a result of his history of military noise exposure… … Additionally, previous testing and today’s audiological evaluation revealed a bilateral, gradually sloping OR FLAT sensorineural hearing loss at all frequencies, which is not a typical noise-induced audiometric configuration…noise-induced sensorineural hearing loss is typically greatest in the highest frequencies and least evidence in the lower frequencies, often with a reasonably sharp transitional region between the affected and unaffected frequency regions. The configuration on hearing discovered previously as well as today is not that of noise-induced etiology. There, this Veteran’s hearing loss is less likely as not due to military noise exposure, but more likely due to presbycusis. [emphasis in original] Similarly, the VA examiner were asked to provide opinions as to whether the Veteran’s bilateral hearing loss was caused or aggravated by a service-connected disability, to include medications prescribed to treat those disabilities. The November 2019 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not that the Veteran’s service-connected disabilities caused or aggravated the Veteran’s bilateral hearing loss. IN support of this opinion, the examiner explained as follows: As for [posttraumatic stress disorder], impaired taste, chronic fatigue, knee surgery, and diplopia, there is no evidence in the literature to support that these conditions cause or aggravate hearing loss. Tinnitus is a symptom of auditory damage from noise exposure, but it does not aggravate hearing loss. In an October 2020 supplemental opinion, a VA examiner considered the medications prescribed to treat the Veteran’s service-connected disabilities. The Veteran’s extensive medication list from 2010 to 2020 was reviewed. Some of the Veteran’s medications have a possible side effect of tinnitus…. Typically, the hearing loss and/or tinnitus is temporary and the effect of these medications relates to dosage and length of time the [Veteran] take the medications. [Service treatment records] were reviewed and the Veteran’s hearing loss has progressed naturally. Therefore, it is this examiner’s opinion that it is less likely as not that the Veteran’s bilateral hearing loss was caused or aggravated by any medications prescribed to treat any of his [service-connected] disabilities. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only probative aggravation, secondary, and etiological opinions of record are by the VA examiners, which are all negative to the Veteran’s claim. The Board finds that the VA examiners’ opinions to be highly probative. Consequently, the Board finds that To the extent that the Veteran asserts (1) that his pre-existing bilateral hearing loss was aggravated beyond its natural course during active duty; (2) that his current bilateral hearing loss onset during active service or are otherwise related to his active duty; or (3) that his current bilateral hearing loss was caused or aggravated by service-connected disability, to include prescribed medication, the Board finds that such determinations are more suited to the realm of medical, rather than lay expertise. The Veteran’s statements are competent as to experiencing lay observable symptoms, such as decreased hearing acuity; however, the etiology and/or determination as to aggravate are too complex for a layperson to proffer a competent opinion. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent etiological or aggravation opinions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Veteran’s lay assertions do not constitute competent evidence of a in this case. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, service connection is not warranted for bilateral hearing loss. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.