Citation Nr: 21009327 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-14 269A DATE: February 22, 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. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to August 1971. This appeal to the Board of Veterans’ Appeals (Board) is from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In support of this claim, the Veteran more recently testified at a “virtual” hearing in October 2020 before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board remanded this claim in November 2020 for further development, including for an addendum medical advisory opinion regarding the etiology of the Veteran’s bilateral hearing loss – especially in terms of whether, like his tinnitus, related or attributable to his military service. There has been the required compliance with this remand directive – certainly the acceptable substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for bilateral hearing loss The Veteran contends that service connection is warranted for his bilateral hearing loss because he sustained acoustic trauma during his service from being exposed to excessively loud noise while engaged in combat in Vietnam. The ringing in the Veteran’s ears (i.e., his bilateral tinnitus) already has been determined to be the result of his service, so a service-connected disability, including notably based on concession that he sustained acoustic trauma while engaged in combat in Vietnam. Unfortunately, however, there is not also the required attribution of the Veteran’s bilateral hearing loss to his service – including especially to that noise trauma, even though conceded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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; 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 entitlement to 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 ratable “disability” according to 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of this VA regulation, 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. The Board already readily conceded as much when remanding this claim in November 2020 because this was evident, even then, when considering the results of September 2017 and October 2019 VA compensation examinations. Furthermore, the Veteran’s record shows his military occupational specialty (MOS) was light weapons infantryman and that he received service awards and commendations for engaging in combat in Vietnam during 1970. As such, the Board concedes that he sustained acoustic trauma during his service – especially, again, when also recognizing that he already has established his entitlement to service connection for his bilateral tinnitus based on that noise trauma during his service, particularly in combat in Vietnam. 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’s prior remand of this claim explained the somewhat lesser burden of proof for establishing entitlement to service connection for a disability, as here, claimed to have been incurred in combat. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). But, as the Board also explained, this circumstance does not absolve the Veteran of still needing to have medical nexus evidence attributing his current hearing loss disability to that combat injury in service, i.e., noise trauma in Vietnam. And 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. The Veteran’s service treatment records (STRs) are unremarkable for any complaints or treatment of hearing loss in either ear. His entrance and separation examination reveal no significant threshold shifts while in service and his separation examination indicates his hearing was within normal limits. That notwithstanding, as it relates to claims of hearing loss, the statutes and regulations do not require complaints of or treatment for hearing loss while in service to establish service connection, nor even does normal hearing shown on audiometric testing at separation bar service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, according to the holding in Hensley, the Veteran need not have had a ratable hearing loss disability during his service, as determined by § 3.385, or even within a year of his discharge for sensorineural hearing loss especially, so long as he now meets the requirements of this VA regulation and there is attribution of his hearing loss to his service, rather than to other or intervening ("intercurrent") causes. The particular type of hearing loss the Veteran has, i.e., sensorineural, may be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of his separation from service, unless rebutted by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). There is no such indication in this instance, however, as the first indication of the Veteran's hearing loss was not until many years after his military service had ended, well beyond this one-year presumptive "grace" period allowing for the initial manifestation of sensorineural hearing loss to a compensable degree. Additionally, the Veteran’s VA treatment records show he denied having hearing loss or tinnitus. In an April 2007 VA treatment note, he indicated that he did not have hearing loss, tinnitus, or dizziness. He repeated that he was not suffering from hearing loss in an October 2016 and April 2017 VA treatment note. The Veteran also has undergone VA hearing loss examinations in September 2017 and October 2019. The Board has previously concluded that the September 2017 VA examination was inadequate for evaluation purposes as it did not address any change in the Veteran’s hearing since his separation from service, nor does it address whether there is evidence that his current hearing loss is otherwise causally related to his service. The October 2019 VA examiner’s opinion was inadequate, as well, since that VA examiner did not properly review the Veteran’s STRs and could not form a conclusion on the etiology of his hearing loss without resorting to mere speculation. The Veterans Court (CAVC) has held that medical opinions using the “mere speculation” language, without more, generally are disfavored because they are inconclusive as to the origin of a disability – meaning they neither attribute the disability to the Veteran’s service or conversely disassociate it from his service. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).   All of those failings are primarily why the Board remanded this claim in November 2020 for still more development – that is, for an addendum medical advisory opinion regarding the etiology of the Veteran’s bilateral hearing loss – especially in terms of whether, like his tinnitus, related or attributable to his military service and, particularly, to his conceded combat noise trauma in Vietnam. The December 2020 VA examiner determined, on remand, that the Veteran's current bilateral hearing loss disability, instead, is related to occupational noise exposure since service as a civilian and the gradual loss of hearing acuity that occurs simply with aging. This December 2020 VA examiner reasoned that the Veteran had a history of post-service noise exposure, including occupational noise exposure from working as a Machinist for 35 years. This VA examiner also noted that, although the Veteran reports having hearing loss ever since his military service, he indicated he never sought out having a private audio examination to have his hearing assessed. He stated the VA hearing loss examination, in 2017, was the first hearing examination done, other than hearing examinations for his job as a machinist. The Veteran also reported wearing hearing protection while employed as a machinist. But the September 2017 initial hearing examination is approximately 46 years post discharge from service and the only hearing loss examination found in the claims file, after the separation hearing examination in 1971. This VA examiner thus determined there is no evidence suggesting the current hearing loss, first diagnosed in 2017, 46 years post discharge, was caused by the Veteran’s military noise exposure. This December 2020 VA examiner added, without any further evidence to the contrary, the configuration of the Veteran’s hearing examination is consistent with presbycusis. This VA examiner explained that hearing loss can be compounded by life experiences such as aging, hereditary, trauma, illness, disease process, ototoxic medications, occupational noise exposure and/or recreational noise exposure. And, based on the Veteran’s statement and recounted history, this VA examiner opined that the Veteran's current hearing loss is less likely than not related to his military noise exposure.   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, including his own statements in which he denied having hearing loss in VA treatment notes in 2007, 2016, and 2017. Lay statements made to medical providers during the course of medical treatment are especially probative (trustworthy) because the declarant has inherent incentive to provide the most accurate recitation of his history to, in turn, receive the most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997); White v. Illinois, 502 U.S. 346, 355-56 (1992).   As well, the Board has considered the Veteran’s contention that, since his tinnitus has been determined to be related to his service (i.e., service connected), so, too, must his hearing loss be attributable to his service. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Since tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). However, determining the origins of hearing loss requires more than subjective manifestations and subjective lay opinion. So, this is an apples-to-oranges comparison inasmuch as a relationship of tinnitus to service may be established by lay evidence, alone, whereas this is not the case for hearing loss. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) and (a)(2). 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 – meaning by August 1972. 38 U.S.C. §§ 1101, 1112, 1113; 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 J. Hamm, 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.