Citation Nr: 21008797 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-20 535A DATE: February 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss did not originate in service or until years thereafter and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 April 1966 to April 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in June 2018. The hearing transcript is associated with the claims file. The appeal was last remanded by the Board in August 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 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; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Sensorineural hearing loss is also a condition of the organic nervous system which is an enumerated condition under 38 C.F.R. § 3.309(a) and for which presumptive service connection is for consideration. Walker, 708 F.3d 1331. 38 C.F.R. § 3.385 outlines the requirements that a Veteran must meet to be diagnosed with a hearing loss disability for VA purposes and states: For the purposes of applying the laws administered by VA, 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, 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 Veteran had in-service audiological evaluations during service in November 1965 and March 1969, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization – American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VE records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 1000 2000 3000 4000 add 15 10 10 10 5 The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for bilateral hearing loss The Veteran contends that he was routinely exposed to loud, unprotected noise during service as a marine engineer. He explained that he worked regularly in an engine room of a boat with four loud engines and was not provided noise protection. Factual Background Audiological testing was performed at enlistment into active duty service in November 1965. However, the enlistment examination contained two sets of test results. One set of results is contained in Section 73 of the enlistment examination and indicates that there was non-availability of an automatic audiometer. The other set of results is contained in section 71 of the enlistment examination. It is also unclear whether such thresholds were recorded using ASA units or ISO-ANSI units. The Board has converted the results that indicated an automatic audiometer was unavailable. The Board notes that testing was not performed at 3000 decibels. Audiologic results were: HERTZ 500 1000 2000 4000 Section 71 results: RIGHT: 15, 15, 15, 15 LEFT: 15, 15, 15, 15 Section 73 results: RIGHT: -5, -10, -10, 15 LEFT: -5, -10, -10, 0 Section 73 converted results: RIGHT: 10, 0, 0, 20 LEFT: 10, 0, 0, 5 Audiometric testing was again conducted at separation from active duty service in March 1969. The March 1969 separation examination indicates that ASA units were used, therefore, the Board has converted the ASA units to ISO-ANSI units. The Veteran’s reported pure tone thresholds, in decibels and using ISO-ANSI units, were: HERTZ 500 1000 2000 3000 4000 RIGHT: 20, 15, 5, 5, 10 LEFT: 20, 15, 15, 15, 10 A June 2011 VA treatment record documents the Veteran’s complaints of hearing loss and having obtained his first hearing aids approximately eight years prior. A July 2011 VA audiology consult note documents that the Veteran was seen due to complaints of gradual decreased hearing ability. The Veteran reported that his hearing loss onset was approximately 20 years prior. The record documents a history of noise exposure during service in engine rooms, post-service as a truck driver, and recreationally as a hunter. The record notes that for the right ear the Veteran had hearing within normal limits for frequencies from 250 to 1000 Hz and moderate to severe sensorineural hearing loss from 1500 to 8000 Hz; and for the left ear the Veteran had hearing within normal limits for frequencies from 250 to 1500 Hz and mild to severe sensorineural hearing loss from 2000 to 8000 Hz. Word recognition scores, using the recorded W-22 word list, were noted as good with scores of 84 percent in the right ear and 92 percent in the left ear. Speech recognition thresholds were also noted as being within normal limits. The record also noted that the Veteran’s hearing loss was consistent with a normal progressive loss due to age and a history of noise exposure with no indications of external, middle, or retrocochlear pathology. The clinician further noted that “based on today’s finding and the patient’s report history it was possible that a component of the Veteran’s hearing loss was the result of acoustic trauma suffered while on active duty unless hearing evaluations performed at the time of and/or some date after his military discharge were available to document that the Veteran’s hearing was within normal limits or significantly better at that time.” The Veteran was afforded an in-person VA examination in June 2012. June 2012 audiological test results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT: 10, 10, 55, 65, 75 LEFT: 10, 10, 20, 75, 100 The results were determined to be valid for rating purposes. Word recognition using the Maryland CNC word list was 94 percent for the right ear and 96 percent for the left ear. Use of speech discrimination scores was also determined to be appropriate for the Veteran. The June 2012 VA examiner determined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in service, including noise exposure. The examiner relied on the Veteran’s audiological examinations at entrance and separation and noted that the Veteran had hearing within normal limits and no threshold shift in hearing from entrance to separation. The examiner explained that there was no basis to support delayed-onset hearing. The examiner also cited to an Institute of Medicine from 2006 titled “Noise and Military Service-Implications for Hearing Loss and Tinnitus” for the finding that “there was no sufficient scientific basis for the existence of delayed-onset hearing loss.” The examiner explained, “Based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss there was no reasonable basis for delayed-onset hearing loss.” The Veteran was afforded a hearing before the undersigned Veterans Law Judge in June 2018. During his June 2018 hearing, the Veteran testified that he was a marine engineer during service. The Veteran explained that his duties included maintaining engines and transmissions in a small engine room with four diesel engines that were quite loud. The Veteran also testified that during service he operated different boats and heavy equipment that could have contributed to his hearing loss too. The Veteran testified that he first noted that his hearing was worsening approximately 20 to 25 years prior at which time he sought treatment and obtained hearing aids. The Veteran believed that working in the engine room and on other parts of the boats during service caused his hearing loss. Post-service, the Veteran testified that he leased and operated a gas station for two years, then drove a tractor trailer for local pick-up and delivery for approximately fifteen years, and then drove a tractor trailer long distances for the last fifteen to eighteen years. The Veteran explained that his post-service careers were “much quieter.” The Veteran’s wife of 39 years also testified during the hearing that the Veteran often does not hear her speaking to him. She also testified that at public places, such as restaurants, the Veteran cannot hear the conversation. The Veteran’s wife concluded that the Veteran loses out on a lot of conversations with her and with family. In June 2018, the Veteran submitted treatise evidence in support of his claim. The Veteran submitted an article titled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” which was published by the Institute of Medicine. The Veteran highlighted sections of the treatise evidence that discussed the lack of adequate hearing protection provided to veterans of his era and the inadequacy of hearing conservation programs and audiometric testing, and likelihood of service members developing hearing loss. The treatise evidence states in part, however, that “[t]he committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests, however, that a prolonged delay in the onset of noise-induced hearing loss is unlikely.” The Veran also submitted a November 2009 article titled “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss” published in The Journal of Neuroscience. The article concludes that “[t]he present results contradict these fundamental assumptions by showing that reversibility of noise-induced threshold shifts masks progressive underlying neuropathy that likely has profound long-term consequence on auditory processing. The clear conclusion is that noise exposure is more dangerous than has been assumed.” A September 2019 VA treatment record again notes that the Veteran’s hearing loss is consistent with a normal progressive loss due to age and/or a history of noise exposure with no indications of external, middle or retrocochlear pathology. The Veteran was afforded another in-person VA examination in December 2019. December 2019 audiological test results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT: 20, 25, 70, 75, 80 LEFT: 35, 35, 70, 95, 105 The examiner again noted that the test results were valid for rating purposes. Word recognition using the Maryland CNC word list was 94 percent for the right ear and 76 percent for the left ear. The examiner noted the Veteran’s occupational noise history including growing up on a farm with tractor and other equipment noise pre-service, working as a marine engineer with significant time in the ship’s engine room and routine exposure to small arms fire at the rifle range during service, and working post-service as a truck driver for thirty years. The examiner also noted recreational and social noise exposure post-service during hunting and shooting at a pistol range. The December 2019 VA examiner again determined 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 December 2019 VA examiner noted that the Veteran did not have a permanent positive threshold shift greater than normal measurement at any frequency between 500 and 6000 Hz for either ear. The examiner explained there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation which the examiner stated was objective evidence of no permanent auditory damage on active duty from conceded noise. In a September 2020 VA addendum opinion, the examiner again determined that the Veteran’s bilateral hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that the Veteran had normal hearing at entrance and separation from service with no worsening of thresholds from entrance to separation. The examiner explained that lack of a threshold shift was objective evidence that no permanent auditory damage occurred during active duty from the conceded noise exposure. The examiner concluded that the evidence was against a nexus. The examiner also discussed the Journal of Neuroscience article titled “Aging after Noise Exposure: Acceleration of Cochlear Synaptopathy in ‘Recovered’ Ears”. The examiner explained, however, that the study results were preliminary and obtained with lab rats. The examiner stated, “Until such time as these results are clinically proven to exist in humans, we cannot alter the current established norms that noise does not accelerate hearing loss after exposure.” Analysis At the outset, the Board notes that sensorineural hearing loss may be considered a chronic disease such as organic diseases of the nervous system, for VA purposes. However, sensorineural hearing loss was not clinically shown to a compensable degree within one year following the Veteran’s discharge from service as required. See 38 C.F.R. § 3.307(3). There is also no persuasive credible lay evidence that sensorineural hearing loss manifested to a compensable degree within one year following the Veteran’s discharge from service nor that the Veteran had continuity of symptomatology of his symptoms. Id. The veteran has consistently testified that he became aware of diminished hearing years after service. Accordingly, service connection for hearing loss on a presumptive basis has not been established and therefore, not warranted. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 Turning to direct service connection, the Board finds that entitlement to service connection for bilateral hearing loss on a direct basis is not warranted. In-service audiological tests, even after conversion from ASA units to ISO-ANSA units, did not reflect that the Veteran had hearing loss rising to the level required for VA purposes upon separation from service. The service examinations did show a difference between the hearing thresholds at service and when he was discharged. The Board acknowledges the July 2011 VA treatment record that noted the Veteran’s hearing loss was possibly from “acoustic trauma suffered while on active duty unless evaluations performed at the time of and/or some date after military discharge were available to document the Veteran’s hearing was within normal limits...” Here, however, the Veteran’s separation examination is available which shows that the Veteran had hearing within normal limits for VA purposes at the time of separation from active duty. The Board emphasizes that the June 2011 VA treatment record documents that the Veteran first obtained hearing aids eight years prior, which would have been approximately 2003. Moreover, the July 2011 VA treatment record notes that the Veteran reported his hearing loss began approximately 20 years prior, which would have been approximately 1991. And, during his June 2018 hearing the Veteran testified that he first noticed his hearing loss approximately 20 to 25 years prior, which would have been approximately 2003. In affording the Veteran the benefit of the doubt, the earliest claimed symptoms of hearing loss were in 1991, which is still more than 20 years after the Veteran separated from active duty service. With regard to the years-long evidentiary gap in this case between the 1969 in-service noise exposure and the earliest manifestations of bilateral hearing loss in 1991, at the earliest, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the Board acknowledges the Veteran’s contention that his hearing loss had a delayed on-set, and therefore, the decades long gap may not be relevant. However, the Board notes that the June 2012 and December 2019 VA examiner’s reports and the September 2020 VA addendum opinion all unanimously provided negative nexus opinions against the Veteran’s claim. The June 2012 examiner’s opinion is of lesser probative value than the others, given that it found no threshold shift at all in service, and relied heavily on the IOM study. The December 2019 opinion, however, did consider the difference in auditory threshold shown in service, but concluded that they did not represent a permanent shift, and were normal testing variations. The Veteran is competent to report when he began experiencing bilateral hearing loss, but as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his symptoms, particularly where he himself acknowledges first noticing the symptoms decades after service, and after working in an occupation involving frequent exposure to large engines. As such, his lay assertions regarding a diagnosis and causation of his bilateral hearing loss are not competent, and are of no probative value. Further, even if his opinion regarding the etiology of a current diagnosis of bilateral hearing loss was afforded some probative value, it is far outweighed by the opinion provided by the December 2019 VA examiner in particular, who has greater training and expertise than the Veteran in diagnosing and assessing hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran’s bilateral hearing loss and his active service. Lastly, the Board acknowledges the treatise evidence submitted by the Veteran in June 2018. However, the Board only affords it some probative value since the findings were not based on examination of the Veteran and his specific history of noise exposure. The Board also emphasizes that one article submitted by the Veteran titled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” weights against the Veteran’s claim because it concluded that prolonged delay in the onset of noise-induced hearing loss is unlikely. Moreover, the Board affords low probative value to the article titled “Aging after Noise Exposure: Acceleration of Cochlear Synaptopathy in ‘Recovered’ Ears, because the September 2020 VA examiner considered the article but determined that the results were not clinically proven to exist in humans since the article was only based on a preliminary study in lab rats. In sum, the medical evidence indicates that the veteran did not have hearing loss in service or a permanent threshold shift or a threshold shift of any clinical significance in service. There is no competent or credible evidence of hearing loss until decades after service, and no competent evidence linking his hearing loss to service. Accordingly, the Board finds that the most probative evidence of record weighs against the Veteran’s claim for entitlement to service connection for bilateral hearing loss. Therefore, the claim must be denied. KELLI A. KORDICH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.