Citation Nr: 21011827 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-00 861 DATE: March 2, 2021 ORDER Service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran’s right ear hearing loss disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2009 to June 2010. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. This matter was previously before the Board in January 2020 but was remanded for further development. The Board finds there has been substantial compliance with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for right ear hearing loss is denied. The Veteran asserts he has hearing loss due to noise exposure in service. His DD Form 214 reflects that his military occupational specialty (MOS) was helicopter repairman. The circumstances of his military service are consistent with the reported noise exposure such that the Board concedes in-service noise exposure. 38 U.S.C. §1154(a). For the reasons that follow, however the Board finds service connection for a right ear hearing loss disability is not warranted. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. A June 2019 private audiogram reflects a current right ear hearing loss disability for VA purposes. Hearing loss is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the Board finds the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran’s service treatment records do not contain any complaints or diagnoses of hearing loss. An audiological evaluation was completed in November 2009 shortly upon (delayed) entrance to service. Pure tone thresholds, in dB, were as follows: Hz 500 1000 2000 3000 4000 RIGHT 5 5 25 25 30 An April 2010 audiological evaluation reflects pure tone thresholds, in dB, were as follows: Hz 500 1000 2000 3000 4000 RIGHT 5 0 20 30 20 Another April 2010 follow-up audiological evaluation reflects pure tone thresholds, in dB, were as follows: Hz 500 1000 2000 3000 4000 RIGHT 5 0 10 20 15 The Veteran’s April 2010 report of medical history indicates he denied ‘ear, nose, or throat trouble;’ hearing loss, or use of a hearing aid. His April 2010 report of medical examination reflects a normal clinical evaluation of the ears. Post-service, private audiograms in February 1998, March 2000, March 2002, August 2003, May 2004, November 2006, April 2007, April 2008, March 2009, December 2010, April 2011, and August 2012 do not reflect right ear hearing loss for VA disability purposes pursuant to 38 C.F.R. § 3.385. In June 2010, the Veteran reported involvement in shooting targets, power boats, scuba diving, power tools, motorcycle, mowing lawn, and operating farm equipment. In April 2011, the Veteran reported involvement in shooting targets (with hearing protection), scuba diving, and mowing or using a weed wacker. In August 2012, the Veteran reported involvement shooting targets, power boats, scuba diving, power tools, chain saws, motorcycle, and lawn mowing. He indicated he knew to use hearing protection with all noise. The Veteran underwent a VA examination in October 2013. Pure tone thresholds, in dB, were as follows: Hz 500 1000 2000 3000 4000 RIGHT 20 20 25 30 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The examiner found that the Veteran’s hearing loss was not at least as likely as not caused by or a result of military noise exposure. In support, the examiner noted that the Veteran’s service medical records contain a November 2009 reference audiogram that reveals normal hearing acuity. They also include an April 2010 reference audiogram that reveals normal hearing acuity. There was not a standard threshold shift in either ear near time of separation. His audiograms from both before and after active duty reveal normal hearing acuity without a standard threshold shift. The examiner also noted that the Institute of Medicine (IOM) report on noise exposure in the military concluded that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure and instead concluded that, based on their current understanding of auditory physiology, a prolonged delay in the onset of noise induced hearing loss was ‘unlikely’ and given the Veteran’s lack of a threshold shift in service, his current right ear hearing loss was not related to service. In July 2017, the Veteran underwent a VA examination. He reported working for a steel company for 19 years. He indicated it was noisy, but he wears hearing protection. He also reported riding a motorcycle but indicated it is not noisy. On objective evaluation the pure tone thresholds, in dB, were as follows: Hz 500 1000 2000 3000 4000 RIGHT 15 15 25 35 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The examiner indicated that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for the right ear. The examiner opined that the Veteran’s right ear hearing loss was not at least as likely as not caused by or a result of an event in military service as his November 2009 and April 2010 audiograms in service indicated normal hearing bilaterally from entrance to exit without significant threshold shifts. In November 2019, the Veteran submitted copies of audiometric records from his employer where he worked as a mill processor. A June 2019 audiometric questionnaire completed by a registered nurse shows the Veteran endorsed difficulty with hearing and exposure to small arms fire; artillery; loud vehicles or aircraft; and loud non-occupational activities such as hunting, pistol or rifle shooting, flying, motorcycling, and amplified music. The form contained the following comments: ‘hearing loss while in military,’ ‘wore hearing protection (plugs),’ and ‘wears muffs.’ A June 2019 employee audiogram report reflects audiometric testing results from November 2015 and June 2019. The pure tone thresholds from the November 2015 testing were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 35 35 The pure tone thresholds, in dB, from the June 2019 test were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 40 45 During his November 2019 Board hearing, the Veteran reported exposure to noise in service, including helicopters, tail rotors, engines, transmissions, and rocket launchers. He reported first noticing hearing loss during basic training after firing a rocket launcher. See November 2019 Board hearing transcript at 4. In January 2020, the Board remanded the appeal to obtain an addendum medical opinion regarding the etiology of the Veteran's right ear hearing loss disability. In compliance with the Board’s January 2020 remand directives, a VA addendum opinion was obtained in August 2020. The examiner found the Veteran’s right ear hearing loss disability was less likely than not incurred in or caused by in-service noise exposure. In support of this finding, the examiner noted the Veteran’s November 2009 reference audiogram showed a 30 dB hearing loss at 4000 Hz only. His April 2010 hearing conservation examinations also showed hearing within normal limits and/or a 30 dB hearing loss at 3000 Hz only when compared to November 2009 reference thresholds. The examiner indicated that hearing was documented as either improving and/or remaining within normal test/retest variability on both hearing conservation examinations completed in April 2010, suggesting no auditory damage was incurred in service. The examiner further noted that the Veteran’s MOS yields a high probability for hazardous noise such that hazardous noise exposure on active duty is conceded; however, there is no objective evidence to support either a temporary or permanent significant threshold shift or subsequent hearing loss occurred in service to suggest possible auditory damage was incurred from conceded military noise. The examiner indicated there is a civilian history of occupational noise exposure and the Veteran has reported noise associated with riding motorcycles, target shooting, using power tools, farming equipment, power boats, and lawnmowers. The examiner reiterated that, as the Veteran's in-service hearing examinations showed stable and/or improved thresholds between entrance and separation rather than any decline, it cannot be reasonably assumed that he suffered any of these potential subclinical effects as there is no objective evidence to suggest otherwise. The examiner further reasoned that even the shifts noted in hearing thresholds post-separation between December 2010 and November 2015, as reported on the Veteran's employer hearing conservation examinations, have remained within normal test/retest variability when compared to his April 2010 military separation examination. The examiner indicated this again suggests no significant decline in hearing up to five years following active duty service; as such, it cannot be reasonably argued that any current hearing loss is related to previous military noise exposure. After a review of the evidentiary record, the Board finds the preponderance of the evidence weighs against finding entitlement to service connection for a right ear hearing loss disability is warranted. Regarding service connection on a presumptive basis, the Veteran’s service treatment records do not reflect a hearing loss disability for VA compensation purposes. 38 C.F.R.§ 3.385. There is no competent evidence showing that the Veteran was diagnosed with a right ear hearing loss disability for VA purposes until June 2019 - years after separation from service and well outside of the applicable presumptive period. Therefore, service connection for right ear hearing loss is not presumed to have been incurred in service. See 38 C.F.R. §§ 3.307(a)(3), 3.309. To the extent the Veteran reports his right ear hearing loss began in service and has continued since, he is competent to report evidence within the realm of his personal knowledge, including the onset and continuity of decreased hearing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, any such lay statements are inconsistent with his treatment records, which show he denied associated symptoms prior to separation. His December 2013 notice of disagreement also reflect he asserts his hearing loss disability was not present until after he left service. The Board reiterates the Veteran’s service and post-service treatment records do not show complaints of hearing problems or clinical evidence of a right ear hearing loss disability per 38 C.F.R. § 3.385 during service or within one year after service. Indeed, post-service private treatment records in April 2011 and August 2012 reflect no hearing impairment for VA purposes. For these reasons, the Board finds his testimony not credible in light of the contemporaneous evidence showing he denied hearing problems and that no hearing loss was found on clinical evaluation. Therefore, the chronicity and continuity of symptomology framework does not establish a nexus between the current disability and active military service. See 38 C.F.R. §§ 3.303 (b). Service connection for right ear hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s right ear hearing loss disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The competent medical evidence weighs against finding that the Veteran’s right ear hearing loss disability began during service or is otherwise related to an in-service injury, event, or disease. In reaching this conclusion, the Board finds the August 2020 VA opinion highly persuasive. The examiner considered all of the pertinent evidence, including but not limited to the Veteran's noise exposure during active service, lay statements, and service and post-service treatment records. The examiner provided a comprehensive and well-reasoned rationale for the offered opinion. The Board has considered the June 2019 questionnaire from the Veteran’s employer. It is uncertain whether the comment noted on the form, ‘hearing loss while in military’ was intended to be a medical opinion or if the nurse was merely reciting the assertion of the Veteran. To the extent this may be considered a nexus opinion from the nurse that completed the questionnaire, the probative value of it is minimal. No rationale was included, and it is heavily outweighed by the in-depth opinion and cogent supporting rationale from the August 2020 VA examiner, who is an audiologist. To the extent the Veteran’s lay statements were intended to establish a nexus, the Board finds he is not competent to determine that any reported symptoms were manifestations of right ear hearing loss as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Accordingly, service connection for a right ear hearing loss disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Aoughsten, 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.