Citation Nr: 21010607 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-12 570 DATE: February 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested within one year following the Veteran's separation from service; and his current bilateral hearing loss is not shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385, 4.85. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1970 to July 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision. In November 2018, a Travel Board hearing was held before the undersigned; a transcript is in the record. In June 2019 and August 2020, this issue was remanded for further development. Service connection for bilateral hearing loss is denied. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including SNHL as an organic disease of the nervous system) may be presumed to be service connected, if manifested to a compensable degree within a specified period postservice (one year for organic diseases of the nervous system). 38 C.F.R. §§ 3.307, 3.309(a). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For VA compensation purposes, hearing loss is considered to be a disability: “when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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 Hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by audiometric testing during a claimant’s period of active military service for service connection for such disability to be granted. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A claimant who seeks to establish service connection for a hearing loss disability must show, as required with any claim of service connection, that a current hearing disability is the result of an injury or disease incurred in service. The Veteran claims he has bilateral hearing loss from exposure to loud noise during service as an artillery officer in the marines. He reports exposure to artillery fire and incoming enemy rocket and ground fire. On May 1968 pre-enlistment examination audiometry puretone thresholds, in decibels, were:       HERTZ       500 1000 2000 3000 4000 RIGHT -5 -10 5 15 LEFT -5 -5 5 5 On February 1970 service entrance examination audiometry, puretone thresholds were:       HERTZ       500 1000 2000 3000 4000 RIGHT -5 -10 -10 0 LEFT -10 -10 -5 0 On June 1973 service separation examination audiometry puretone thresholds, were:       HERTZ       500 1000 2000 3000 4000 RIGHT 5 0 5 5 5 LEFT 5 0 5 25 15 On December 2015 VA private audiological evaluation on behalf of VA audiometry, puretone thresholds were:       HERTZ       500 1000 2000 3000 4000 RIGHT 35 35 45 55 65 LEFT 35 35 65 75 80 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. The Veteran reported that he first experienced ringing in the ears at Artillery School in 1970. He reported that he engaged in artillery fire during service in the Vietnam War, without use of hearing protection, and was not a participant in a hearing conservation program. The examiner noted that audiometry in both July 1972 and June 1973 was within normal limits for each ear. The current diagnoses were bilateral hearing loss and tinnitus. The examiner opined in essence, that it was difficult to [ascertain the etiology of the Veteran’s hearing loss regarding contribution from military noise exposure, considering the intervening aging process, and exposure to noise in the 40+ years between service and the current hearing loss disability]. The examiner opined that based on the fact that there was no hearing loss documented during service, and hearing was documented to be within normal limits upon leaving the service, it is less likely than not that the current hearing loss was caused by exposure to military noise. In February 2016 private treatment the Veteran reported hearing loss and intermittent tinnitus. He stated that his tinnitus was triggered by exposure to loud sounds and artillery fire during the Vietnam War. On January 2020 examination by a private audiologist on behalf of VA, the Veteran reported difficulty hearing his wife's and granddaughter's and other soft spoken voices. January 2020 examination audiometry found puretone thresholds were:       HERTZ       500 1000 2000 3000 4000 RIGHT 35 45 45 60 60 LEFT 40 40 65 70 70 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 76 percent in the left. The examiner noted that an Officer Questionnaire, completed approximately 19 months post discharge, shows a NO response to both hearing loss and ringing in ears, and that although the Veteran reported that his hearing loss started in 1971, there is no documentation of this. There were no complaints of hearing loss noted in the claims file until 2015, 42 years post discharge. Veteran reported that he was first had hearing acuity tested privately in 2016, 43 years post discharge. Although exposure to noise in service was conceded and a relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not [not necessarily due to] noise alone and therefore a nexus of current hearing loss to service was not established. The examiner opined that it was less likely than not, that the Veteran’s current left ear hearing loss was caused by his military noise exposure. The August 2020 remand specifically directed that an apparent puretone threshold shift at 3000 Hz in the Veteran’s left ear from July 1972 audiometry in service to separation examination audiometry in June 1973 should be addressed. In an August 2020 medical opinion based on review of the record, the consulting audiologist noted that the 3000 Hz frequency was not tested/documented on the May 1968 nor February 1970 audiometric studies. The examiner noted that normal hearing thresholds are 0-25dB. The hearing, in both ears, at separation was found to be normal, or within the 0-25dB range. The examiner opined that if there was no 3000 Hz reported on the 1970 audio then it cannot be determined what the threshold then was. There is no way to rule out even that there was pre-existing loss at 3000 Hz, (which is not likely). It the puretone thereshold was 15db in 1972 and 25dB in 1973, which were both still in the normal hearing (0-25dB) range. The examiner pointed out that there were no complaints of hearing loss found in the claims file until 2015, as 42 years after discharge. The Veteran reported that he was first tested privately in 2016, 43 years post discharge. Although noise exposure in service is conceded, and a relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are [due to] noise alone and therefore a nexus between exposure to noise in service and the current hearing loss is not established [based on those facts alone]. The August 2020 consulting provider further explained that it is difficult to determine the onset, progression and etiology of hearing loss without having ongoing audiologic data. Hearing loss can be compounded by life experiences, such as illness, disease process, trauma, occupational or recreational noise exposure, aging and/or hereditary factors. The examiner noted that the Veteran had normal hearing thresholds (0-25dB) 500-6000 Hz, in both ears, during service. Further, his self-reported questionnaire, in 1975, did not report hearing loss or tinnitus. The examiner noted that the Veteran first sought audiologic consultation from the VA in 2015 and then privately in 2016, more than 40 years postservice. Notably, he did not report that he sought medical consultation for hearing loss prior to 2015. The pattern of hearing loss reported on the 2015 C&P examination, the privately obtained audio in 2016, and the C&P examination obtained in January 2020 all reported similar findings. As such, the examiner opined that the Veteran’s pattern of hearing loss was more likely consistent with presbycusis. At the outset, the Board finds that the August 2020 advisory medical opinion is substantially compliant with the Board’s remand instructions and that the evidence is now adequate for rating purposes. It is not in dispute that the Veteran now has a bilateral hearing loss disability and that he was exposed to substantial noise trauma in service. As a hearing loss disability was not shown in service or within a year following the Veteran’s discharge from active duty, and was not shown for decades thereafter, service connection for hearing loss on the basis it became manifest in service and persisted, on a presumptive basis (for SNHL as a chronic organic disease of the nervous system (under 38 U.S.C. § 1112) or based on continuity (under 38 C.F.R. § 3,303(b) is not warranted. The analysis turns to whether the Veteran’s bilateral hearing loss is otherwise shown to be etiologically related to his service/exposure to noise trauma therein. Whether a current hearing loss disability is related to remote (decades ago) exposure to noise trauma is a medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed Circuit 2007). The only competent and fully adequate medical opinion in this matter is found in the January 2020 examination with August 2020 addendum opinion reports. The August 2020 consulting provider’s opinion reflects review of/familiarity with the Veteran’s entire medical history, cites to supporting factual data, and includes rationale that invokes medical principles. The provider explained (as the Board interprets the explanation) that the 25 decibel puretone threshold at 3000 HZ at separation did not reflect a significant shift from the 15 decibels puretone threshold at that frequency (on the only audiometry in service testing at the frequency) in 1972 (noting also that both findings were in the normal range and that the Veteran reported not having a hearing problem in 1975 (on a periodic examination). The examiner discussed the various causes of hearing loss other than acoustic trauma, and indicated that the hearing loss pattern found was consistent with presbycusis (the aging process), one of the nonservice-related known risks for hearing loss. The provider also cited to the lengthy postservice interval before hearing loss was first reported/documented. Which the Board notes is of itself a factor for consideration weighing against a finding of service connection. The Board finds the very thorough opinion to be probative evidence in the matter. The Veteran has not presented an adequate (equally probative) medical opinion, of medical treatise evidence to the contrary. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fabian Lokenauth, 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.