Citation Nr: 21009846 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-23 106 DATE: February 23, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s current hearing loss disability is not related to military noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1976 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. In August 2018, the Board reopened the hearing loss claim and remanded this matter to the agency of jurisdiction (AOJ) for further development. Thereafter, an April 2020 rating action granted service connection for tinnitus; the tinnitus matter consequently is no longer before the Board. 1. Entitlement to Service Connection for Bilateral Hearing Loss Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). When a condition is not noted on entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure-tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Turning to the evidence of record, the Veteran’s DD Form 214 reflects that he served as a heavy weapons infantry man and received a marksman M16 badge. The Veteran’s February 1976 service enlistment examination notes preexisting hearing loss. Specifically, audiometric testing revealed the following pure tone threshold, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 X 25 LEFT 25 20 20 X 10 On April 21, 1977 periodic audiology examination, audiometric testing revealed the following pure tone threshold, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 20 25 25 LEFT X 75 75 75 75 On April 22, 1977 periodic audiology examination, audiometric testing revealed the following pure tone threshold, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 15 10 10 LEFT 55 45 35 35 40 A June 1977 physical profile record indicated the Veteran’s ongoing H-2 hearing profile. The Veteran’s July 1977 separation examination also noted asymmetric hearing loss. On July 1977 audiology examination for separation, audiometric testing revealed the following pure tone threshold, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 20 X 25 LEFT 25 20 20 X 10 Within a month of separation from active service, the Veteran filed a claim seeking entitlement to service connection for left ear hearing loss. However, the claim was denied as the VA found that the Veteran did not have a left ear hearing loss disability for VA purposes, as required by 38 C.F.R. § 3.385. During an October 2011 VA audiology consult, the Veteran reported concerns regard headaches, left ear fullness, and left ear tinnitus of over previous year but denied any hearing problems. As for his prior noise exposure, the Veteran reported two years of Army service as a tank gunner with intermittent use of hearing protection devices. The Veteran denied any loud noise exposure at work or during recreational activities. Following audiometric testing, the VA audiologist was unable to offer an etiology due to inconsistent and unreliable results. On a later November 2011 audiological evaluation, the Veteran reported poorer hearing in the left ear since his Army service as a gunner on a tank. He also reiterated his complaints of intermittent headaches and aural fullness in the left ear associated with the hearing loss. Following the August 2018 Board remand, the Veteran underwent VA examination in August 2019. Audiometric testing revealed the following pure tone threshold, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 15 50 LEFT 40 40 35 40 60 Speech audiometry, using the Maryland CNC Word List, revealed speech recognition ability of 96 percent in the right ear and 84 in the left ear. After noting the Veteran’s bilateral sensorineural hearing loss, which did not exist prior to service, the VA examiner went on to opine that the Veteran’s hearing loss is at least as likely as not a result of military noise exposure. As rationale, the examiner stated that the Veteran had a significant shift in his hearing while in the service and that the April 1977 hearing tests indicated hearing loss. When the Veteran exited service, the tested thresholds were normal but not all of the frequencies which had a shift were tested. As such, the examiner could not rule out that there was still a shift in hearing at three and six kHz. The Veteran underwent another VA examination in September 2020. After also noting the Veteran’s bilateral sensorineural hearing loss, which did not exist prior to service, a separate VA examiner went on to opine that the Veteran’s bilateral hearing loss is less likely as not a result of military noise exposure. As rationale, the examiner stated that there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. Also, the Veteran's medical examination audiometric thresholds do not suggest hearing loss was present at entrance, nor at separation. Entrance examination indicates an H-2 profile, however, no changes were seen in hearing thresholds from entrance to separation. There was no report of complaint/treatment for hearing decrease in STRs or at separation. Although noise exposure is conceded with an MOS with a high probability for hazardous noise exposure, 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. In an October 2020 VA addendum opinion, the September 2020 examiner opined that that the Veteran’s left ear hearing loss, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by in-service noise exposure. As rationale, the examiner stated that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. There was no report of complaint/treatment for hearing decrease in STRs or at separation. Although noise exposure is conceded with an MOS with a high probability for hazardous noise exposure, 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. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for bilateral hearing loss is not warranted. First, addressing the in-service injury or disease requirement, although the Veteran's service records document no evidence of a specific incident of acoustic trauma, there is no real dispute that the Veteran likely had significant in-service noise exposure. As mentioned above, the Veteran has consistently reported noise exposure associated with his MOS duties and receipt of the marksman M16 badge. Further, the VA conceded this noise exposure in awarding service connection for the Veteran’s tinnitus disability. Thus, his assertions as to in-service noise exposure appear consistent with the circumstances of his service. See 38U.S.C. §1154. Moreover, as there is no reason to question the veracity of the Veteran's assertions in this regard, the Board finds that the Veteran's likely significant in-service noise exposure is established. As for the current disability requirement, objective VA audiometric testing in August 2019 and September 2020 revealed bilateral sensorineural hearing loss between 500 and 4000 Hz. Accordingly, the Veteran has a bilateral hearing loss disability for VA purposes. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). Therefore, the remaining question is whether the Veteran's hearing loss is etiologically related to his military service. Pertinent to this question, the record consists of the August 2019 and September 2020 VA examination reports with opinions as well as the October 2020 VA addendum opinion. Thus, the Board must weigh the probative value of these conflicting opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). While the Board finds no reason to question the competency of the VA opinion providers, the Board finds that the August 2019 opinion is of limited probative value as it failed to consider the Veteran’s elevated thresholds during his entrance examination as well as his hearing profile for entry into service. However, the September and October 2020 VA opinions, when read together, were clearly based on full consideration of the Veteran's documented medical history and lay assertions, and are supported by clearly-stated rationale. As such, the Board accepts these opinions as probative of the medical nexus question. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has expressed his belief that his current hearing loss is related to noise exposure in service. The Board acknowledges that lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive issue in this case, whether the Veteran’s preexisting hearing loss was aggravated by noise exposure in service, is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). An opinion as to whether a significant threshold shift occurred in service and whether there is a link between the Veteran's current hearing loss and service, where there is no evidence of hearing problems for decades after service, is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. In sum, the Board finds that the evidence does not support a medical nexus between active service noise exposure and present hearing loss. As such, the evidence is against the claim, and the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Spann, 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.