Citation Nr: 21012119 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-02 960 DATE: March 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative medical and other evidence does now show the Veteran’s bilateral (left and right ear) hearing loss is related or attributable to his service, including the result of repeated exposure to loud noise and consequent injury (acoustic trauma). CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 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 December 1966 to November 1968. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 and July 2020, the Board remanded this claim back to the Agency of Original Jurisdiction (AOJ) for further development and consideration – including to obtain all outstanding treatment records pertinent to this claim (whether VA and/or private) and for a medical opinion concerning the etiology of this claimed disability, especially in terms of whether related or attributable to the Veteran’s military service. This additional development also included obtaining an addendum opinion to supplement prior opinions. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that his bilateral hearing loss onset during his service and has persisted ever since. He traces it to serving as a switchboard operator and points out he did that activity heavily and, thus, was exposed to hazardous levels of noise from wearing headphones with the sound very close to his hears. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).   The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a Veteran has a ratable hearing loss disability is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the 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. See 38 C.F.R. § 3.385. The Court clarified in Hensley, however, that a Veteran need not have had sufficient hearing loss during his service to meet the requirements of this VA regulation, or even within the one-year presumptive period following conclusion of his service for sensorineural hearing loss especially, only, instead, must now meet these requirements and have attribution of his current hearing loss disability to his military service, as opposed to other (“intercurrent”) causes or factors. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). And, here, after a thorough review of the relevant evidence of record, the Board finds that the preponderance of this evidence is against the Veteran’s claim of entitlement to service connection for bilateral hearing loss. There is a currently diagnosed bilateral hearing loss disability meeting the threshold minimum requirements set forth in 38 C.F.R. § 3.385, so there is no disputing the Veteran has this claimed condition. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Specifically, a March 2014 VA audiological evaluation report shows that his relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 60 55 LEFT 10 10 25 55 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. A December 2019 VA audiological evaluation report revealed that relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 20 60 55 LEFT 20 15 35 55 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. An October 2020 VA audiological evaluation report revealed that relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 60 55 LEFT 15 15 35 60 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Moreover, the Veteran’s lay testimony regarding his military noise exposure is competent and credible evidence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Further, the Board has no reason to question the credibility of his contentions regarding his noise exposure in service, particularly as the claimed military noise exposure is consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). Indeed, the ringing in his ears (i.e., tinnitus) was determined to be a service-connected disability on the premise it is attributable to his noise exposure in service. Nevertheless, there is no probative indication that the noise exposure in service resulted in any injury and consequent chronic disability that, in turn, could support the required attribution to his current bilateral hearing loss. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Regarding this determinative issue of the etiology (i.e., cause) of the Veteran’s bilateral hearing loss disability, a VA audiologist provided an opinion in October and November 20120 that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by his claimed in-service injury, event, or illness. In reaching this conclusion, this examiner first noted there was no permanent shift in hearing thresholds beyond test variability from time of entrance into service until time of separation from service, which is objective evidence of no permanent auditory damage on active duty from the conceded noise exposure. Further in this regard, the examiner conceded that the Veteran’s military occupational specialty (MOS) as a communication specialist had a high probability of hazardous noise exposure, also that he had basic training on the rifle range with no hearing protection. But this examiner then explained that, although noise exposure in service consequently is conceded, auditory damage and hearing loss are not conceded based on noise exposure, alone, and there must be a nexus of auditory damage to relate to the Veteran’s current hearing loss disability to his military noise exposure and not to another etiology. This examiner reasoned that it cannot be reasonably assumed that the Veteran suffered any potential subclinical effects (auditory damage), as there is no objective evidence to suggest either a temporary or permanent significant threshold shift occurred in either ear, particularly in the 3000 to 6000 Hertz frequency range. This examiner also explained that no valid reputable studies on human ears have shown onset of hearing loss due to noise exposure to be delayed in nature; hearing loss if related to military noise exposure would have to be present via significant threshold shift at the time of military service. The examiner further observed that the Veteran had a long civilian history of occupational noise exposure since he reported wording for 35 years in construction (sheet metal work). It also was explained that the prevalence of hearing loss increases with age (presbycusis), and it the third most common chronic condition reported in older adults. As well, the examiner noted that research also has linked high-frequency hearing loss to other health conditions, including thyroid disease, cardiovascular disease (hypertension or hyperlipidemia), kidney disease, diabetes, anemia and arthritis, and the Veteran has a diagnosis of hypertension, as well as a history of smoking tobacco, one package per day for 45 years. The examiner thus ultimately concluded that, while hazardous noise exposure on active duty has been conceded, there remains no objective evidence suggesting an onset of symptoms in service, and the available evidence is against a nexus. Further in this regard, the Veteran’s service treatment records (STRs) show that, at the time of his entrance into the military, in July 1966, his relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 5 (-) 5 LEFT 5 -5 -5 (-) -5   Contrastingly, the Veteran’s September 1968 service separation examination report shows no complaints of or diagnosis of hearing loss. Relevant pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 (-) 0 (-) LEFT 0 0 (-) 0 (-) During the March 2014 VA examination, the Veteran reported being exposed to loud noise while wearing a headset in military service. But also, following military separation, he indicated working as a sheet metal worker for 35 years. The VA examiner’s decision not to associate the Veteran’s bilateral hearing loss with the noise exposure he had in service, versus since (in addition to the other relevant factors mentioned that also have nothing to do with his military service), was based on a comprehensive review of his claims file and clinical examination of him, and considered his reported history, and is consistent with the other evidence of record. The examiner considered the Veteran’s reported history of military and post-military noise exposure, as well as other factors studies have shown are relevant to eventual development of hearing loss. The VA examiner’s report indicated that the claims file was reviewed, and the reasoning for his opinion evidences that review and contains the required discussion of the underlying rationale of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). The Board resultantly assigns significant probative weight to the VA examiners’ opinions, especially the one most recently obtained in October 2020 on remand of this claim. There is no controverting medical opinion of record. To the extent the Veteran contends that his bilateral hearing loss is related to his military service, his statements are not competent evidence to establish medical etiology in this case. In certain instances, lay testimony may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while military noise exposure is not disputed in this case, the question of whether the Veteran’s current bilateral hearing loss was caused by that noise exposure during his service or by some other causes does not lie within the range of common experience or common knowledge, but instead requires special experience or special knowledge in the field of audiology. See 38 C.F.R. § 3.159(a)(1) and (a)(2) (defining lay versus medical evidence); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining that the determination of whether lay versus medical evidence is needed to support a claim is a fact-specific, case-by-case, determination based on the type of condition being claimed in terms of whether simple or, instead, complex). Although the Board considered the lay testimony of record attesting to the significant noise exposure in service, a diagnosis of hearing loss is based on objective audiometric testing. Lay testimony cannot definitively establish the actual decibel loss at a given range and, therefore, cannot be used to state a specific decibel level of hearing loss. It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer a medical etiological opinion. The most probative (competent and credible) evidence of record shows the Veteran’s current bilateral hearing loss disability was not at least as likely as not caused by military noise exposure, and the Board may not accept unsupported lay speculation regarding medical issues. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).   Additionally, the evidence of record does not support finding that the Veteran’s high frequency (i.e., sensorineural) hearing loss manifested to a compensable degree within one year following his separation from service to, in turn, warrant presuming it was incurred during his service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Board has considered the benefit of the doubt doctrine in deciding this claim, but the preponderance of the evidence is against this claim, so this doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.012; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.