Citation Nr: 21009778 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-33 183 DATE: February 23, 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 hearing loss disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from May 1967 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in August 2018. In the August 2018 decision, the Board denied entitlement to service connection for tinnitus and remanded the Veteran’s claims of entitlement to service connection for hearing loss and a right shoulder disability. A June 2020 rating decision granted entitlement to service connection for right shoulder arthritis. The Veteran’s hearing loss claim was remanded for an updated examination with nexus opinion. 1. Entitlement to service connection for bilateral hearing loss The Veteran argues that his current bilateral hearing loss is a result of acoustic trauma/hazardous noise exposure in service. The Veteran’s military occupational specialty (MOS) was reciprocating engine mechanic (airplane mechanic). His exposure to hazardous noise (in-service injury) is conceded. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). To deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (“A veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ to prevail.”). Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies from 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran’s service treatment records do not include a diagnosis of hearing loss, and his in-service hearing tests do not show hearing loss disability for VA purposes under 38 C.F.R. § 3.385 (although, as noted above, that is not required for a grant of service connection). The Veteran’s enlistment hearing test showed that his left hearing was not as good as his right hearing. There is one hearing conservation audiometric test in July 1967. It noted that his noise exposure was from working on the flight line and hangar shop. At that time, new to his MOS position, his hearing was noted to be “good” (highest level on the form), and “ear protection” was worn. On discharge medical history, the Veteran selected that he did not have hearing loss. Again, his discharge audiometric test showed that his left hearing was worse than his right hearing (his right hearing was unchanged from enlistment). The Veteran filed a claim of entitlement to service connection for hearing loss in August 2011, and noted that his hearing loss disability began in May 1967. The Board notes that the Veteran initially sought VA disability benefits in October 1976, but only sought benefits for his right shoulder. At that time, he did not claim to have hearing loss or tinnitus due to service. In December 2011, the Veteran participated in a VA hearing loss examination. The examination showed that the Veteran had left ear hearing loss for VA disability purposes. He did not meet the requirements for right ear hearing loss under 38 C.F.R. § 3.385 at that time. He was diagnosed with bilateral sensorineural hearing loss. The examiner selected the negative nexus opinion option on the form, finding the Veteran’s hearing loss was less likely than not due to or a result of an event in military service. The examiner noted that the Veteran’s MOS of reciprocating engine mechanic showed that his “noise exposure probability is high.” The examiner noted that the Veteran’s induction physical and discharge physical showed “normal hearing.” “Veteran had normal hearing at discharge, so it is less likely as not that current hearing loss is due to military noise exposure.” In the remarks section, the examiner noted that the otoscopy was unremarkable for both ears. His military noise exposure was reported as including aircraft engines (reciprocating) with hearing protection. The Veteran stated that he was “often inside the wing near an engine with it running to make repairs/adjustments” to the engine. His post-service occupational noise was minimal, with some exposure to manufacturing equipment and race cars with use of hearing protection. His recreational noise exposure was minimal with occasional shooting with hearing protection. He had no significant family history of hearing loss. The Veteran additionally reported his tinnitus began 10 years prior, in approximately 2001. In August 2018, the Board denied entitlement to service connection for tinnitus. The Board cited the 2011 examiner’s negative nexus opinion included that although the Veteran had in-service noise exposure, but that he had departed service with normal hearing, and he did not report tinnitus until 30 years after discharge. The Board remanded the Veteran’s hearing loss claim because the 2011 examiner had provided a negative nexus opinion relying on the Veteran’s normal hearing at separation as a rationale. The examiner found the opinion inadequate, and remanded for another examination and opinion. In March 2019, the Veteran participated in another VA hearing loss examination. The audiology results again revealed that the Veteran had left ear hearing loss for VA purposes. Although Puretone threshold results continued to show that his right ear hearing loss did not reach disability criteria under 38 C.F.R. § 3.385. However, based on speech recognition scores, he was also shown to have right hearing loss during this examination. The examiner diagnosed bilateral sensorineural hearing loss. The examiner provided a negative nexus opinion, citing the Veteran’s normal hearing during entrance and separation evaluations, “with no significant threshold changes which was objective evidence of no permanent auditory damage on active from conceded noise.” Additionally, the examiner’s rationale included that there was no report of complaint/treatment for hearing decrease in service treatment records or during separation. The Veteran reported in-service noise exposure as an engine mechanic, with use of hearing protection, but also 8 years of post-service noise exposure with car racing, also with use of hearing protection. “Although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology.” The examiner then noted that the “evidence was against a nexus.” Regarding the onset of his hearing loss, the Veteran reported it began “many years ago.” He reported his tinnitus began in approximately 2000, without a specific triggering event. The examiner noted that the Veteran’s tinnitus was likely due to his hearing loss. The Board finds that the preponderance of the evidence is against finding that the Veteran’s current bilateral hearing loss is due to the Veteran’s service. The Board notes that the Veteran has an in-service injury (exposure to hazardous noise). As of the 2019 examination, the Veteran has a current disability of bilateral hearing loss. However, prior to the 2019 examination, the 2011 examination had only shown left ear hearing loss disability. The record does not show a nexus between in-service injury and current disability. The 2019 examiner provided a negative nexus opinion, citing the Veteran’s normal hearing in service without threshold shift, the Veteran’s post-service noise exposure for 8 years, the Veteran’s tinnitus beginning 30 years after service due to his hearing loss, and the Veteran’s vague report of hearing loss onset. The Board additionally notes that the Veteran did not seek entitlement to disability benefits for hearing loss or tinnitus in 1976 when he sought benefits for his right shoulder. The private treatment records he has provided only relate to his right shoulder; there are no ongoing treatment records (VA or private) related to his hearing loss complaints. Notably, the Veteran did not have right ear hearing loss disability for VA purposes in 2011 (more than 40 years after discharge from service). Given the above, the preponderance of the evidence is against finding that the Veteran’s current bilateral hearing loss disability is due to his military service. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. Stubbs, 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.