Citation Nr: 21010295 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 19-26 209 DATE: February 24, 2021 ORDER Service connection for bilateral hearing loss is denied FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current bilateral ear hearing loss for VA purposes is due to a disease, event, or injury in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 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 August 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2020, at which time the Board remanded the matter for further development. As the requested development has been substantially completed, as discussed below, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; 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 United States Court of Veterans Appeals (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).   The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss is related to in-service noise exposure. Specifically, the Veteran was exposed to loud noises as a demolitions expert while serving in Vietnam. The service treatment records reveal that the Veteran’s hearing was within normal limits at enlistment and separation. Specifically, the enlistment examination noted auditory thresholds in the frequencies 500, 1000, 2000, 4000 Hertz (Hz) as -5 decibels (db), bilaterally. And, the separation examination noted auditory thresholds in the aforementioned frequencies as 0 decibels, bilaterally. 01/26/2017, STR – Medical, pages 5-8. An August 2017 VA examination reflects that the Veteran has a current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. However, the examiner opined that the Veteran’s bilateral hearing loss is less likely than not related to in-service noise exposure. Specifically, the examiner noted that the Veteran’s hearing was within normal limits at separation and, although medical science does not rule out that delayed onset hearing loss may exist, the requisite longitudinal animal and human studies have not been done. 08/03/2017, C&P Exam. In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159. The Court explained that, when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a “disability” at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. A February 2020 Board decision acknowledged that the Veteran’s representative had submitted and discussed excerpts from a scientific study suggesting that medical research has established a relationship between acoustic trauma and hearing loss that is experienced years or decades later. The Board remanded the claim and directed the Agency of Original Jurisdiction (AOJ) to obtain any outstanding VA treatment records and request the Veteran to submit any relevant records and evidence, to include a complete copy of the scientific study cited by the Veteran’s representative. Specifically, the AOJ was to request submission of “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss,” published in the Journal of Neuroscience on November 11, 2009. Additionally, the AOJ was directed to obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral hearing loss. The clinician was further directed to consider the medical literature regarding the relationship between acoustic trauma and delayed onset of hearing loss submitted by the Veteran. 02/18/2020, BVA Decision. Shortly thereafter, the AOJ requested the Veteran to provide the cited medical literature. 02/21/2020, Subsequent Development Letter. And, in March 2020, the Veteran responded that he does not have access to the cited medical literature published in the Journal of Neuroscience and that he also did not have any further records to submit. The Veteran stated that no further action needed to be taken on the remand directives regarding the submission of records and medical literature and requested that the AOJ proceed with obtaining an addendum opinion. 03/04/2020, VA 21-4138. A copy of the Court’s 2019 decision in McCray v. Wilkie was submitted. 03/04/2020 CAVC Decision.   An August 2020 VA examination also reflects the Veteran has a current bilateral hearing loss disability for VA purposes. The examiner opined that the Veteran’s bilateral hearing loss is less likely than not related to in-service noise exposure. The examiner also remarked that the Veteran’s hearing was within normal limits at separation. And, the examiner cited the Institute of Medicine’s Study on Military Noise Exposure (IOM report) to indicate that there is an insufficient scientific basis to support delayed onset of hearing loss. The examiner acknowledged recent studies on rodents that speculate on delayed onset of hearing loss but noted challenges in translational research due to genetic and physiological differences between humans and rodents. The examiner also acknowledged that the IOM report’s conclusion is based, in part, on the lck of definitive studies to address the issue of delayed onset of hearing loss, the anatomical and physical data available on the recovery process following noise exposure indicate that it is unlikely that such delayed effects occur. 08/14/2020, C&P Exam. The Board acknowledges the Court’s decision in McCray v. Wilkie that discusses the IOM report containing unfavorable findings as well as apparently contradictory findings regarding delayed-onset hearing loss. In McCray, the Court noted that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if an issue is raised by the veteran or reasonably raised by the record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. And, if the Board requires assistance in understanding or interpreting the underlying medical text evidence, it may seek clarification from the medical expert who wrote the opinion or from another source. 31 Vet. App. 243, 249, 257 (2019). Here, the August 2020 VA examiner relied, in part, on the IOM report. However, the examiner also considered other recent studies on rodents that speculate on delayed onset of hearing loss. Additionally, the examiner acknowledged the specific deficiencies of the IOM report, particularly with regard to the lack of definitive studies on the delayed onset of hearing loss, but then relied on the anatomical and physical data contained within the IOM report. Moreover, the cited medical text evidence was accompanied by a medical opinion from a medical doctor, who has expertise in the field of audiology, and is familiar with the relevant facts of this Veteran case. In this regard, the opinion shows that the audiologist considered the Veteran’s MOS of combat engineer, the Veteran’s reports of in-service exposure to loud noises, and his STRs, to include the enlistment and separation examinations. In light of these, factors the Board places considerable weight on this probative evidence that goes to nexus. The Board notes the Veteran’s contention that he has had progressive loss of hearing since separation from active service. 07/12/2017, VA 21-4138. The Veteran is competent to report diminishing hearing over the years since service. However, although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the bilateral hearing loss, to include decreased hearing acuity, is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The ear condition here involves a pathological process and auditory measurement that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of origin of the diagnosed condition is a medical question requiring medical training, expertise, and experience. As such, the Veteran is not competent to provide a statement regarding etiology and his opinion in this regard lacks weight. Additionally, the Veteran’s statements regarding the onset of the hearing loss are not competent to determine whether the Veteran’s bilateral hearing loss manifested to a compensable degree during the year following service and lack weight. On the other hand, the August 2020 examiner, an audiologist with training in the field of hearing loss, has provided a thorough examination report that took into consideration the Veteran’s lay statements and provided a sufficient rationale for the Board to evaluate the claim. For the reasons stated above, the Board gives much weight to VA examiner’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).   In sum, the Veteran has a current bilateral hearing loss disability for VA purposes and an in-service hazardous noise exposure during service, however there is not competent and probative evidence of a nexus between the current disability and his active military service. The preponderance of the evidence weighs against a finding for service connection for bilateral hearing loss. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.