Citation Nr: 21012803 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-34 309A DATE: March 5, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a right ear hearing loss disability for VA purposes. It is less likely than not that the Veteran’s left ear hearing loss was incurred in or otherwise related to his active military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1968 to December 1969. The matter is on appeal from a November 2011 rating decision. The Veteran provided testimony at a Board hearing before the undersigned Veteran’s Law Judge in June 2018. A transcript of the hearing is of record. The matter was previously remanded by the Board for further development in June 2018. Service Connection Bilateral Hearing Loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran asserts that he has bilateral hearing loss that is related to his active military service. At the February 2018 Board hearing, the Veteran reported that while he was serving in Vietnam his job was to serve on guard duty, where he sat in a concrete bunker and one or two times per night would fire several hundred rounds out of a machine gun to try and ascertain if there were any enemy in the vicinity, and their specific location. When he was not serving on guard duty in the bunker, he worked on the mortar squad. He noted that the best ear protection he ever had was cigarette filters that he stuck into his ears. The Veteran’s DD214 reflects an MOS of Infantryman Light Weapons. Military noise exposure is conceded. However, in-service noise exposure on its own is not enough to grant service connection for bilateral hearing loss. For service connection to be warranted, it must be shown that the in-service noise exposure caused a current bilateral hearing loss disability. The Veteran most recently underwent a VA examination in June 2019, at which he was found to have left ear hearing loss for VA purposes, but he was not found to have right ear hearing loss for VA purposes. For VA purposes, impaired hearing will be 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. Further, the United States Court of Appeals for Veterans Claims (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). When audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, at 160. Here, the Veteran’s service treatment records (STRs) show the results of audiometric testing at both his enlistment and his discharge examinations. However, it is unclear whether such thresholds were recorded by using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. Therefore, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 Add 15 15 10 10 10 5 10 10 Here, when the conversion is made, the Veteran’s hearing acuity at separation showed the following decibel loss: HERTZ 1000 2000 3000 4000 RIGHT 10 10 10 5 LEFT 10 10 10 5 As such, the Veteran was not shown to have any impairment in hearing acuity at the time of his discharge. The Veteran’s Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, from the June 2019 VA examination were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 15 10 15 15 96 LEFT 50 65 90 105 78.75 36 As such, the Veteran has a current left ear hearing loss disability for VA purposes, but he does not have a current right ear hearing loss disability for VA purposes. The Board notes that the Veteran has undergone other audiometric testing prior to the June 2019 VA examination, however, none of the results show the Veteran to have right ear hearing loss for VA purposes. Therefore, the question for the Board is whether there is a causal relationship between the Veteran’s current left ear hearing loss and his military noise exposure. A Veteran may show that hearing loss is the result of military noise exposure and that some hearing impairment at separation marks the onset of hearing loss which appears decades later, however, this has not been done in this case. This will be explained starting with the findings from a November 22, 2002 private audiological examination and working chronologically forward through the Veteran’s record. At a private audiological examination from November 22, 2002, the Veteran’s hearing was within normal limits through 4000 hertz with a slight drop at 6000 hertz, which was a little worse in the right ear, and then recovered at 8000 hertz bilaterally. The Veteran reported a 40-year history of work-related noise exposure, as well as air tool use, racecar driving, and recreational hunting/target shooting. It was noted that he had occasionally used hearing protection. A letter dated October 28, 2005, from an ear nose and throat specialist, noted that the Veteran had been seen on October 27, 2005 for evaluation due to plugging of his ears. The Veteran had reported that he felt that if he could just “break pressure” in his ears that his hearing would return. The Veteran relayed that four weeks prior to the onset he had been doing some pistol shooting, and after he left the range, he noticed some increased ringing in his left ear and some fluctuating hearing. It seemed to stabilize, and roughly two weeks later he went to the same target shooting practice. After this episode he noticed that his hearing declined in both ears. The Veteran reported that he does wear some sound attenuating ear molds. The physician voiced the concern that the Veteran’s complaint of a plugged sensation was actually a sudden sensorineural hearing loss. The Veteran underwent a VA examination in February 2011, at which the examiner found that the Veteran’s bilateral hearing loss, worse in the left ear and constant, was not caused by or a result of his history of military noise exposure. It was noted that the Veteran’s hearing in his right ear was found to be within normal limits for adjudication purposes, with only mild sensorineural hearing loss at 6000 hertz. The examiner rationalized that at the Veteran’s entrance and exit examinations he had normal bilateral hearing sensitivity according to his puretone air conduction thresholds. There was no statically significant decrease in his bilateral hearing sensitivity during military service. There was no evidence of any head injury, acoustic trauma, hearing loss, tinnitus, or ear conditions during military service. The examiner reported that any hearing loss the Veteran may have had during military service was only temporary in nature, as research studies have shown that hazardous noise exposure has an immediate effect on hearing, that usually is temporary at first. It does not have a delayed onset, nor is it progressive or cumulative. The examiner provided citations. The Veteran’s medical records were noted to relate his hearing disturbances to the onset of unilateral right hearing loss in 2002, specifically to two incidents of target shooting in 2002. The Board finds probative value in the February 2011 VA examiner’s opinion. An additional letter dated April 19, 2012, from the same ear nose and throat specialist that wrote the October 28, 2005 letter, relayed that the Veteran had served in the military through his late teenage years and into early twenties. His pre and post entrance and exit audiograms from service were noted to show normal hearing. Following the Veteran’s military service, he worked in various noisy environments, to include working in construction for many years, and currently in a prison system. The Veteran was also reported to be an avid hunter. It was noted that he wore ear protection, but that he had recalled one incident where his left protective device failed. The Veteran was concerned that the etiologic factor of his hearing loss was the compounding of all the noise he had been exposed to over the years. That is, both military and work history. The physician reported normal otologic findings upon examination. The Veteran’s audiogram supported normal hearing in his right ear, and a developing sensorineural hearing loss in the left ear from roughly 2000 through 8000 hertz as a progressing sloping loss. The physician noted that while they were well aware that the Veteran’s exit audiogram from service showed no hearing impairment, additive effects of noise exposure, certainly could create hearing loss as years expire. It was reiterated that the Veteran was not pinpointing his military service as the exact etiology, but that he thought that it may possibly be an additive component to his deficit. The physician finished the letter stating that by being a military Veteran, assistance in amplification was warranted for the Veteran, although none of them could clearly divinely state that the Veteran’s hearing loss was strictly from the military. The Board finds a limited amount of probative value in the physician’s letter, but only to the extent of suggestion. The letter does not rise to the VA weight of at least as likely as not, and it is postured more around the Veteran’s beliefs than around the findings from the physician. At the Board hearing in February 2018, the Veteran reported that an ear nose and throat specialist that he had seen had diagnosed him with nerve damage and told him that his hearing was a cumulative situation. The Veteran reported that while it had taken a while, his ear had eventually had enough and had shut down. During the hearing, the Veteran acknowledged that he had post-service recreational noise exposure. The Veteran relayed that after he had gotten out of service, he had gone deer hunting the next fall, but that after that first time, he had put his gun away and had not utilized it again until 1988. He also reported that he had driven race cars for about seven years, and had officiated at a racetrack. He noted that he always wore ear protection when he was at the track. In a private medical opinion dated April 6, 2018, from an additional ear nose and throat surgical specialist, the physician opined that the Veteran’s hearing loss was at least as likely as not (70/30 probability) caused by or a result of constant gunfire and shelling from canons during his military service while stationed in Vietnam. The physician reported that they had reviewed pertinent parts of the Veteran’s military records, service treatment records, and C-file that documented the Veteran’s injuries, disease, and clinical conditions. The Veteran’s enlistment audiogram was relayed to be within normal limits, but with 10 to 20 decibel variable loss at different frequencies. The separation audiogram was within normal limits with zero decibel loss at different frequencies, and therefore, the physician reported that they did not know the amount of hearing loss sustained at the time of the audiogram. The physician relayed that they had yet to see a consistently zero decibel loss on any audiograms to date, especially with their patients. Thus, it was argued that the test done at separation was not a valid test. A November 22, 2002 audiogram was reported as within normal limits with a 10 to 20 decibel variable loss at different frequencies. A March 9, 2018 audiogram revealed normal hearing sensitivity at 250 to 2000 hertz with a mild sloping to moderate sensorineural hearing loss from 3000 to 8000 hertz in the right ear, and mild sloping to profound sensorineural hearing loss from 250 to 8000 hertz in the left ear. The physician felt that this was a delayed-onset of a unilateral and asymmetric sensorineural hearing loss from the Veteran’s earlier years of excessive loud noise exposure, especially when he was assigned to a specific task when operating military weapons, and not a consequence of a peaceful, civilian life in a rural community with a career as an electrician. The Board finds probative value in the physician’s opinion, however, the Board notes that the physician did not take into account in the opinion any post-service noise exposure. At the June 2019 VA examination, the examiner noted that the Veteran’s hearing in his right ear did not meet the minimum standards set by VA to be considered a compensable hearing loss. The examiner found that the Veteran’s left ear hearing loss was less likely than not (less than 50 percent probability) caused by or a result of the Veteran’s military service. The examiner explained that there was no evidence found that supported a positive rationale for military noise exposure being the cause of the Veteran’s current hearing loss in the left ear. Both the Veteran’s military enlistment and separation examinations showed normal hearing in the left ear. The examiner stated that there was no reason to doubt the exam results at separation as the thresholds were documented in the audiometer section. The examiner relayed that there was evidence that documented the Veteran’s hearing loss in his left ear possibly being related to attending automobile races in the fall of 2002 and pistol target shooting many years after his military separation. Private hearing evaluation documentation described these events that were self-reported by the Veteran. There is evidence that the Veteran’s hearing was similar in both ears prior to these events. The Veteran now has a significant asymmetry of hearing, with the left ear being much poorer, which cannot be explained by military noise exposure. There was no evidence to establish continuity of care. The Veteran’s medical records related hearing disturbances to the onset of unilateral right hearing loss in 2002, specifically to two incidents of target shooting in 2002. The examiner noted a private medical evaluation dated October 28, 2005, that documented a diagnosis of “sudden sensorineural hearing loss” four weeks after “some pistol shooting” as a civilian. The examiner stated that this provides further evidence that the Veteran’s current hearing loss in his left ear is not caused by military noise exposure. The examiner also noted a private hearing evaluation dated November 2, 2002, that showed normal hearing in the Veteran’s left ear. The examiner stated that these findings provided irrefutable evidence that the Veteran’s current hearing loss in the left ear occurred sometime between November 2, 2002 and present, and not during military service or the decades since his military separation. The examiner noted that the examination also stated that the Veteran reported a 40-year history of civilian occupational noise exposure, auto racing noise, and pistol shooting noise. The Board finds the June 2019 VA examiner’s opinion to contain great probative value, as the examiner provided a well-reasoned and thorough rationale for their findings. Based upon the foregoing, service connection for bilateral hearing loss is not warranted. First, the record reflects that the Veteran does not have right ear hearing loss for VA purposes. As to the Veteran’s left ear hearing loss, the June 2019 VA examiner’s opinion in conjunction with the February 2011 VA examiners opinion outweigh the April 2018 and April 2012 private ear nose and throat specialists’ opinions. The April 2018 private opinion did not take into account the Veteran’s personal reports of post-service noise exposure. Specifically, there were post-service target shooting noise exposure events surrounding the onset of the Veteran’s left ear hearing loss, in addition to auto racing noise exposure and work-related noise exposure that were not addressed. While the April 2012 private opinion noted the Veteran’s post-service noise exposure, the opinion only provided the suggestion that the Veteran’s left ear hearing loss may have been related to his military noise exposure, as the letter was written from the standpoint of the Veteran’s beliefs, rather than the physician’s. Additionally, the private opinions did not explain why if the Veteran was not found to have normal hearing in the relevant frequencies between 500 and 4000 Hz decades after service in 2002, his hearing loss which developed some time after that was the result of military noise exposure. Consideration is given to the Veteran’s contention that his bilateral hearing loss was caused by his active military service. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of bilateral hearing loss, as is specific to this case, is outside the realm of common knowledge for someone who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran’s contentions do not provide any probative value as to the etiology of his bilateral hearing loss. The Board notes that the Veteran as a lay person is competent to report facts such as his perceived hearing acuity at separation, or whether he noticed any deterioration in his ability to hear during service, or in the years after service. Should he choose to file a supplemental claim, the Veteran is encouraged to submit a more detailed opinion from his private physician, explaining why it is thought that the Veteran’s hearing loss is the result of his military noise exposure rather than his post-service noise exposure. The preponderance of the evidence is against the Veteran’s claim, and therefore, service connection for bilateral hearing loss is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.