Citation Nr: 21009076 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-03 562 DATE: February 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s pre-existing right ear hearing loss did not undergo an increase in disability in service and his left ear hearing loss did not manifest during, or as a result of, active military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1963 to January 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in May 2017 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. The Board denied entitlement to service connection for bilateral hearing loss and tinnitus in an October 2017 decision. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC) and in October 2018 the Court issued a Memorandum Decision that vacated the October 2017 decision and remanded the claims back to the Board. The Board again denied the claims in a June 2019 decision. The Veteran appealed to the CAVC and in March 2020 the Court granted a Joint Motion for Remand (JMR), vacated the June 2019 Board decision and remanded the issues to the Board for development consistent with the JMR. In July 2020, the Board remanded the claims for additional development. In a September 2020 rating decision, the RO granted entitlement to service connection for tinnitus, and as such, this issue is no longer on appeal. Entitlement to service connection for bilateral hearing loss. The Veteran seeks entitlement to service connection for bilateral hearing loss. He asserts he was exposed to acoustic trauma during service and currently suffers from hearing loss. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to establish entitlement to service connection, a Veteran must show 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 an in-service injury or disease. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303 (b), service connection may be established for certain chronic diseases listed under 38 C.F.R. § 3.309 (a) by either (1) the existence of such a chronic disease noted during service, or during an applicable presumption period under 38 C.F.R. § 3.307, and present manifestations of that same chronic disease; or, (2) where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity can be legitimately questioned, then a showing of continuity of symptomatology after discharge is required to support the claim of service connection. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hearing loss, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 (Hz) 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. In Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) the Court held that even if audiometric testing at separation did not establish hearing loss by VA standards at 38 C.F.R. § 3.385, such audiometric test results did not preclude granting service connection for a current hearing loss when there is evidence that current hearing loss is causally related to service. In Hensley, there was an upward shift in threshold levels at some frequencies on an examination for separation and in-service audiometric testing yielded elevated thresholds at some frequencies. Thus, the Court found that the claim could not be denied solely because the hearing loss did not meet the criteria for 38 C.F.R. § 3.385 at separation. Rather, if there were any current hearing loss (by VA standards) it had to be determined whether shifts in auditory thresholds during service represented the onset of any current hearing loss (even if first diagnosed a number of years after service). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. See 38 U.S.C. §§ 1110; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. 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. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner; Jensen v. Brown,19 F.3d 1413, 1417 (Fed. Cir. 1994). If the Veteran meets his burden of demonstrating an increase in disability during service, the preexisting condition is presumed to have been aggravated in service, and the burden is on the Secretary to rebut the presumption. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut the presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the preexisting condition was due to the natural progress of the condition. Horn, 25 Vet. App. at 235 n.6; 38 U.S.C. § 1153. In the present case, the Veteran has a current diagnosis of bilateral hearing loss. See October 2011 VA examination. The Board therefore finds that the evidence demonstrates a current diagnosis, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). With regard to an in-service event, occurrence, or injury, in his claim, the Veteran asserted that he had been exposed to the noise trauma from guns; he stated that each time he fired the guns, he had a roaring in his ears and that every noise was muffled for at least a day after the exposure. He also stated that he operated air chippers for eight hours at a time. During his May 2017 hearing, the Veteran testified that he was exposed to noise while he was a seaman aboard the U.S.S. Essex. The Veteran indicated that he was exposed to noise at all times on the ship. Further, the Veteran testified that his duties involved the firing of five-inch guns and other small arms in support of the Marine contingent and other contingents aboard the ship. The Board finds only that in-service exposure to loud noise has been substantiated. As such, the second element of Shedden is met. See Shedden, 381 F.3d at 1167. Thus, the question for the Board is whether the Veteran’s current diagnosis of bilateral hearing loss either began during active service, within a year from discharge, or is otherwise etiologically related to his in-service noise exposure. The Veteran had a service audiological evaluation upon entrance to service in February 1963, at which time auditory thresholds were recorded. It is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. For service audiological evaluations conducted prior to January 1, 1967, VA protocol is to assume the ASA standard was used. Audiometric data originally recorded using ASA standards is 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 Board notes that on entrance to service in February 1963, the Veteran’s hearing was abnormal in his right ear for VA purposes. Also, the summary of defects noted a hearing defect in the right ear. The Veteran’s physical capacity/stamina, upper extremities, lower extremities, hearing/ear, eyes, and psychiatric (PULHES) profile shows he was assigned a “2” for hearing. See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993) (providing that the “PULHES” profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). The Veteran had abnormal hearing in the 4000 Hertz frequency in the left ear, but he did not have hearing loss for VA purposes. The entrance examination revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 (45) 35 (45) 30 (40) -- 30 (35) LEFT 5 (20) 10 (20) 10 (20) -- 20 (25) As noted above, when a condition is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. The Board finds that right ear hearing loss was noted upon entry into service. Hence, to the extent that the Veteran’s right ear was not shown to be of sound condition at induction, the presumption of soundness does not attach in this case. Consequently, for the Veteran’s claim for right ear hearing loss, the burden is on him to demonstrate that the right ear hearing loss increased in disability during service, which would serve to establish the presumption of aggravation. See Wagner, Jenson, Horn, supra. Additionally, evidence is required to show that his left ear hearing loss was incurred in or caused by service. As will be discussed below, after considering the evidence of record, the Board finds that the evidence is against a finding of service connection for bilateral hearing loss. Turning to the evidence of record, the Board notes that the Veteran’s service treatment records show that on his entrance report of medical history, the Veteran denied any problems related to his ears. He also denied needing hearing aids. The Veteran’s January 1967 separation examination did not include an audiogram examination. The physical examination did not reveal any abnormalities related to his ears. The Veteran’s hearing was noted as normal (15/15) on whispered and spoken voice testing. The Veteran has repeatedly stated that he noticed his hearing getting bad in the 1980s. His wife submitted a statement in September 2011 indicating that she had married the Veteran in 1980 and had noticed that he had a hearing problem within several months of their marriage. During his October 2011 VA examination, the Veteran stated that he had worked as a truck driver for 15 years, as a maintenance supervisor for more than 20 years, and as a handyman for 10 years. The Veteran reported that he had three bilateral stapedectomies from the late 1980s to the late 1990s. The examiner noted the current diagnosis of bilateral hearing loss. The examiner indicated that the three stapedectomy surgeries were for a condition known as otosclerosis, which is not a condition caused by noise exposure. With regard to the nexus between the current disability and the period of service, the examiner explained that without an audiogram at separation, it is unknown whether the Veteran’s preexisting right ear hearing loss was aggravated by military noise or if the left ear hearing was damaged by military noise. A private audiological evaluation from December 2011 notes the Veteran reported a history of in-service noise exposure from “firing guns a lot” and being “around air-chipping hammers a lot.” The Veteran’s post-service noise exposure was noted as well as his post-service surgeries in the 1980s. It was noted that he purchased hearing aids in the 1980s. The audiologist noted that the audiogram appeared to show moderate, mixed but mostly sensorineural hearing loss in both ears in all frequencies with air-bone gaps in the lower frequencies in both ears which was in keeping with his history of otosclerosis and surgeries. The audiologist noted that the higher frequency loss was likely from noise exposure and “could have been initiated in military service.” As noted, the burden falls to the Veteran to provide evidence of an increase in severity of right ear hearing loss during service. In this regard, the Veteran testified during his Board hearing that he was diagnosed with hearing loss in the mid-1980s when he was working for a sheriff’s department. At that point, he stated, he purchased his first hearing aids and his hearing went “downhill.” The Board acknowledges the Veteran’s assertions that his hearing loss is related to his military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of hearing loss, to include whether it is related to any particular injury or incident, falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report his symptoms, any opinion regarding whether his hearing loss is related to in-service noise exposure requires medical expertise that the Veteran has not demonstrated because the record shows a significant post service intervening event (another ear condition and ear surgeries) thereby rendering the nexus question presented in this case a matter of medical complexity. As such, the Board cannot assign any probative weight to the Veteran’s assertions that his current hearing loss is related to his period of service. The Board notes that the October 2018 CAVC Memorandum Decision indicates the Board failed to address the Veteran’s statements that his hearing loss began during service in the October 2017 decision. The adequacy of the October 2011 VA examination was also questioned, as the examiner based the opinion on the absence of symptoms during or just after service. The Board notes that the Veteran indicated on his application for service connection that his hearing loss began in 1964-1965. See January 2011 Application for Compensation and/or Pension. He also described that every time he fired guns, he had a roaring in his ears and noise was muffled for at least a day afterwards. See January 2011 statement. Importantly, however, the Veteran’s statements regarding the onset of his disorder have not been consistent. Although he indicated on his application that he experienced symptoms during service in the 1960’s, in a September 2011 statement, his wife reported noticing the Veteran had a hearing problem several months after they were married in 1980. Additionally, during the May 2017 Board hearing, the Veteran again reported noticing his hearing loss in the 1980s. See May 2017 BVA Hearing Transcript, page 7. Therefore, although the Veteran is competent to report on his hearing loss symptoms, based on the inconsistency of his statements, they cannot be deemed reliable credible lay evidence of onset of chronic symptoms in service and ever since service. Furthermore, the Board finds the October 2011 VA examination adequate despite being based on the absence of symptoms during or shortly after service, as it is based on the Veteran’s own report of an onset of hearing loss in the 1980s. Although the examiner did not discuss the Veteran’s statements in the record asserting his hearing loss began during service, the Board notes that these assertions have been found not credible, and therefore, the examination is not inadequate. As for the medical opinion evidence of record, the October 2011 VA examiner indicated that there was not enough evidence to provide an opinion related to the etiology of the hearing loss. The Board finds that the October 2011 opinion is a “legitimate inconclusive opinion” and that VA does not have to demand a conclusive opinion from the examiner. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010) (“While VA has a duty to assist the Veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence.”). While a private December 2011 opinion noted that the Veteran’s higher frequency loss was likely from noise exposure, the opinion goes on to speculate that the hearing loss “could have been initiated in military service.” An opinion based on speculation does not provide the requisite degree of medical certainty to support service connection of a disability. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor’s statement that a Veteran’s brain tumor “may well be” connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term “could,” without other rationale or supporting data, is speculative); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship). The December 2011 opinion also does not provide a sufficient rationale, which is particularly significant given the close proximity of when the Veteran noticed chronic symptoms of hearing loss and the necessity for stapedectomies for the condition of otosclerosis, which is known to cause hearing loss. See Williams v. Nicholson, No. 04-1379, 2006 LEXIS 77, at **2-3 (Vet. App. Feb. 13, 2006) (unpublished single-judge disposition) (noting that “[o]tosclerosis is a generally hereditary condition arising from abnormal bone growth in the ear, which causes hearing loss. Otosclerosis, National Institute on Deafness and Other Communication Disorders, at http://www.nidcd.nih.gov/health/hearing/otosclerosis.asp # 1.). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”)). There is also no indication that the December 2011 opinion was based on a review of the claims file which contains such relevant facts as the fact that the Veteran entered service with pre-existing right ear hearing loss. See Nieves-Rodriguez, 22 Vet. App. at 303 (providing that when the Board uses facts obtained from review of the claims file as a basis for crediting one expert medical opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment). For these reasons, the Board does not find the December 2011 opinion persuasive. Consequently, there is no persuasive medical opinion evidence linking the Veteran’s hearing loss to in-service noise exposure. There is also no persuasive evidence that the right ear hearing loss underwent an increase in severity during service. As noted in the July 2020 Board remand, the March 2020 JMR vacated the June 2019 Board decision, stating that the October 2011 VA examiner failed to address the Veteran’s normal whispered voice test at the time of his separation from service and how that test informs an opinion about aggravation or incurrence of his current bilateral hearing loss. Based on the March 2020 JMR, the Board remanded this claim in July 2020 to obtain an addendum opinion. An addendum opinion was obtained in August 2020. The examiner stated that the audiogram is the objective standard for determining noise injury. The examiner noted that the available evidence of record pertaining to the Veteran’s hearing includes the enlistment audiogram, dated February 1963, and a separation examination, dated January 1967, which only utilized a whispered voice test. The examiner explained that after conversion from ASA to ISO-ANSI units, the Veteran’s enlistment audiogram indicates a pre-existing hearing loss in the right ear and normal hearing in the left ear. Continuing, the examiner explained that normally, these results are compared to the separation audiogram to determine if the pre-existing right ear hearing loss was aggravated beyond normal progression during service or whether there was a permanent positive shift in left ear hearing thresholds, however, as noted, the separation examination dated January 1967 only utilized a whispered voice test. The examiner explained that whispered voice tests do not provide any quantitative measure of hearing loss and cannot be compared to pure tone hearing thresholds to determine if the Veteran’s pre-existing hearing loss was aggravated beyond normal progression during service or his left ear had a shift in hearing; therefore, in the absence of pure tone audiometric test results at separation, there is no objective evidence available to support a positive finding for aggravation or that the Veteran suffered hearing loss due to noise exposure in service. The examiner concluded by stating that the Veteran’s MOS and his subjective report of noise exposure, in isolation, cannot support a nexus opinion for progression of a pre-existing hearing loss in the right ear or hearing loss in the left ear due to military noise exposure. As such, there is no probative, persuasive evidence of record that indicates that the Veteran’s pre-existing right ear hearing loss underwent an increase in severity in service and that his left ear hearing loss is causally or etiologically due to service. As explained previously, because the Veteran entered into service with noted right ear hearing loss, the burden is on him to demonstrate that the right ear hearing loss increased in disability during service. The Veteran has not met this burden of demonstrating such an increase. Importantly, the only positive medical opinion of evidence, the December 2011 opinion, does not include any discussion of pre-existing right ear hearing loss prior to entry to service or any discussion of aggravation of right ear hearing loss during service. The only other evidence in support of the claim is the Veteran’s own opinion; however, the question of an increase in severity of an underlying disability as opposed to temporary or intermittent flare-ups of a pre-existing disease falls outside the realm of common knowledge of a lay person. Additionally, as noted, the only positive medical opinion of record, from December 2011, is couched in speculative terms stating his hearing loss “could have been initiated in military service.” The Board, therefore, finds that the Veteran failed to meet the initial burden of demonstrating an increase in severity of right ear hearing loss during service, and his left ear hearing loss has not been persuasively demonstrated as being causally or etiologically due to service. Finally, although sensorineural hearing loss is considered a chronic disease for VA purposes, there is no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its initial onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. Accordingly, service connection is not warranted for hearing loss on any basis. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.