Citation Nr: 21013163 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-51 730 DATE: March 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence does not support the Veteran’s claim for service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1957 to February 1960 and August 1961 to July 1962. He is the recipient of a Good Conduct Medal. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by a Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a May 2019 Board hearing before the undersigned Veterans Law Judge. This appeal was previously before the Board in November 2020 when it was remanded for further development to include obtaining updated VA and private treatment records, and, if additional treatment records were obtained, an addendum medical opinion. A review of the claims file reveals that additional medical records were indeed added to the claims file in December 2020 and January 2021; an addendum opinion was obtained in February 2021. The Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The matter has returned to the Board for further appellate review. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he has actually observed and is within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). 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. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hearing loss is among the chronic disabilities for which a presumption of service connection is warranted if shown to a compensable degree within a year following separation from service. 38 C.F.R. §§ 3.307, 3.309(a). 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 is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has a current diagnosis of bilateral hearing loss. See August 2016 VA hearing loss and tinnitus examination. The Veteran asserted, through his attorney, that his hearing loss was caused by military noise exposure. See May 2019 Board hearing transcript. The Veteran’s service treatment records (STRs) are negative for complaints of hearing loss. The February 1957 entrance and February 1960 separation examinations for the first period of service, and the July 1961 entrance examination for the second period of active service showed normal Whisper Test, but do not contain audiogram findings. The Board notes the Whisper Test provides no threshold or frequency specific audiological data. However, the STRs do contain a July 1962 separation examination for the second period of active service, wherein converted pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 5 LEFT 15 10 0 10 10 NOTE: The Board has converted the findings from the noted audiograms from ASA to ISO-ANSI standards. Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, any of the Veteran’s pre-1967 must be converted to ISO-ANSI standard, which tends to show a higher loss of hearing. A thorough review of the claims file reveals no post-service treatment records prior to the August 2016 VA hearing loss and tinnitus examination. The first question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. As noted above, the Veteran’s STRs are negative for hearing loss complaints, and there is no record of complaints or treatment for hearing loss between the July 1962 separation examination and the August 2016 VA examination, more than five decades. Thus, the Board concludes that bilateral hearing loss for VA purposes was not shown in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Board notes that service connection may still be granted on a direct basis; however, the Board finds that the preponderance of the evidence in this appeal is against finding that a medical nexus exists between bilateral hearing loss and an in-service injury, event, or disease. The claims file includes audiological results from the August 2016 VA hearing and tinnitus examination. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 75 75 80 LEFT 35 40 75 75 85 Maryland speech recognition testing revealed 62 percent in the right ear and 74 percent in the left ear. The audiologist diagnosed bilateral sensorineural hearing loss and noted a permanent positive threshold shift greater than the normal measurement variability at any frequency between 500 and 6000 HZ, in both the right and left ears. However, the audiologist opined the Veteran’s bilateral hearing loss was not at least as likely as not (less than 50 percent probability) caused by or a result of an event in service. As a rationale for that opinion, the audiologist noted the Veteran’s hearing thresholds at the time of entrance and separation were all within normal limits. The examiner cited the American College of Occupational Medicine Noise and Hearing Conservation Committee, noting that a noise-induced hearing loss will not progress once the noise exposure has stopped. Thus, the audiologist concluded that the Veteran’s current hearing loss is less likely than not related to in-service noise exposure or acoustic trauma. The claims file also includes a September 2017 VA medical opinion based entirely on a review of the file (without an in-person examination). The examiner opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) incurred in or was caused by the claimed in-service injury, event or illness. As a rationale, the examiner noted a review of the STRs shows that the Veteran’s hearing was tested on enlistment and during active duty with whispered/spoken voice test, which is not considered a valid indicator of hearing status since it is not frequency or ear specific and does not use any calibrated stimuli. After conversion of the separation audiogram a from ASA to ISO standards, the Veteran’s hearing results on separation were normal. The January and February 2020 private treatment records that were obtained after the Board’s November 2020 REMAND were reviewed and considered in this matter, but they are devoid of any nexus evidence. In the subsequent February 2021 VA medical opinion, the audiologist outlined the pertinent evidence in the claims file. The audiologist then opined that the Veteran’s bilateral hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the audiologist noted that the Veteran’s entrance exam included a Whisper Test, not a valid measure of thresholds, but thresholds were within normal limits during his separation exam. Outside records were reviewed; however, some were illegible or significantly lacking in information (no right ear thresholds, bone conduction, immittance). The reviewing audiologist also noted that the Veteran had significant post-service noise exposure including firearms for hunting, with rare use of hearing protection, and heavy equipment and motorcycle operation, without hearing protection as reported in the 2016 VA hearing loss and tinnitus examination. The audiologist also observed that the Veteran did not report hearing loss until 2016, decades after service. Citing medical literature, the audiologist noted that “hearing losses in humans are multifactorial with contributions from, and potential interactions among numerous variables that can shape final outcomes.” Any noise exposure through the veteran’s life, including traffic noise, smoke alarms, etc. would have to be considered in addition to any military noise exposure. Many factors contribute to age-related hearing loss including genetic predisposition and medical conditions. Thus, considering normal thresholds at separation, significant post-service noise exposure, and the multifactorial contributions noted above, the evidence is against a nexus in this case. It is less likely than not that the hearing loss is related to service noise exposure. During the Veteran’s May 2019 Board hearing, the Veteran’s representative reported that the Veteran’s hearing is bad, and he consequently had difficulty understanding questions during his September 2016 examination. The Board notes that the Veteran is competent to observe lay symptoms, including trouble hearing. The Veteran has not been shown to have the training or credentials to provide a competent opinion as to a diagnosis of a hearing loss disability, defined as noted by regulation and by specific testing, or the onset date of such diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In contrast, the most recent VA audiologist reviewed the claims file and the Veteran’s prior medical records, and provided a medical opinion that relied not only upon the audiological findings in service but also acknowledged exposure to military noise. Consequently, the Board assigns substantially more probative value to the examination opinion. In a March 2021 Written Brief Presentation, the Veteran’s representative asserted that a new examination was necessary to address the ‘competent and credible” reports of military noise exposure. The Board notes the Veteran’s reports of in-service noise exposure have been noted in full by VA examiners, and a new examination is not warranted. In summary, while the Veteran has current bilateral hearing loss, the preponderance of the evidence is against the claim. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for bilateral hearing loss must be denied. See 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.