Citation Nr: 21013514 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-14 595 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in April 2017. In April 2018 and June 2020, the Board remanded the issue for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his hearing loss is due to hazardous noise exposure during active service. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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 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. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, On the VA audiological evaluation in December 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 35 60 LEFT 15 20 25 50 75 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The VA examiner noted the Veteran has bilateral sensorineural hearing loss. Based on the Veteran’s pure tone thresholds, the Veteran has a hearing disability for VA purposes since auditory threshold at 4000 Hz in the right ear is 60 dB and the auditory threshold at 3000 Hz in the left ear is 50 dB. The Board concludes that, while the Veteran has a current diagnosis of sensorineural hearing loss, and evidence shows that the Veteran had noise exposure, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of sensorineural hearing loss began during service or is otherwise related to an in-service injury, event, or disease. Private treatment records show the Veteran was not diagnosed with hearing loss until June 2011, over four decades after his separation from service. The Veteran underwent VA examination in conjunction with his claim in February 2011. After reviewing the claims file and interviewing the Veteran, the examiner attempted to complete clinical testing to determine the nature and etiology of the claimed hearing loss. However, she reported that thresholds and word recognition could not be measured due to inconsistent and unreliable results. The examiner noted that responses were part word at lower levels than those documented and pure tone responses were significantly worse than expected. She stated that the degree of impaired hearing could not be determined due to inconsistent results and that her findings were not suitable for adjudication purposes. No etiological opinion was provided regarding the claimed hearing loss. VA and private treatment records reflect a diagnosis of hearing loss. Significantly, a June 2011 audiological evaluation contains a note in which the private audiologist opined that the Veteran’s hearing loss was more likely than not initiated in military service. However, she reported that her findings were completely different from a prior July 2010 VA evaluation and noted that the Veteran did not appear to need hearing aids. Furthermore, although the various audiograms of record document decreased hearing acuity, they are not sufficient for VA purposes because they do not contain a controlled speech discrimination test (Maryland CNC) as required by VA regulation. See 38 C.F.R. § 3.385. The December 2018 VA examiner opined that the Veteran’s hearing loss was not at least as likely as not related to military noise exposure, while the October 2019 VA examiner opined that the Veteran’s hearing loss was not at least as likely as not related to delayed onset due to noise exposure. It was noted that the Veteran’s pre-induction findings showed that hearing in the right ear was within normal limits, and that there was a moderate, high frequency hearing loss at 4000 Hz in the left ear. The separation physical indicated hearing within normal limits for the right ear with an apparent threshold shift at 500 Hz. There was a mild hearing loss at 4000 Hz in the left ear with an apparent threshold shift at 500 Hz. [It appears the examiner is interpreting the numeral entered as “0” at 4000 Hz as “10” based on a squiggly mark next to the “0”.] The pre-existing hearing loss in the left ear at pre-induction improved at separation. It was noted that according to test results obtained by the clinic in December 2018, the thresholds at 500Hz were improved, bilaterally, which indicated that there had not been a permanent threshold shift in either ear at 500Hz. The September 2020 VA examiner provided an addendum opinion and stated that a significant threshold shift as it relates to noise exposure would be a worsening of threshold of at least 10 dB at a frequency in the range of approximately 3000 Hz through 6000 Hz. This frequency range is the range of hearing that is generally affected first due to noise exposure. Because there was no significant worsening of thresholds for either ear in this range during military service, the opinion offered was that hearing loss is less likely as not caused by military noise exposure. It is noted that a worsening of threshold at 500 Hz for each ear is documented in the Veteran’s record. The low frequency range of hearing from 250 Hz through 500 Hz is not typically affected by noise exposure. A change in hearing in this range could be related to a number of issues including a common cold or ear infection. Although there was a change in the Veteran’s hearing at 500 Hz, hearing was still within the normal hearing range for each ear at the time of separation. The September 2020 VA examiner continued that the low frequency threshold shift is not clinically indicative of noise exposure. The post military service changes in the Veteran’s high frequency hearing are not considered to be caused by military noise exposure. The examiner also reasoned that rejecting delayed onset hearing loss is based on the Institute of Medicine’s study: Noise and Military Service. The study stated “There is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” The Board finds the combined VA opinions to be the most probative opinions and are dispositive of the nexus question presented in this case. In particular, the October 2019 VA opinion and September 2020 addendum opinion reflect the expert’s knowledge and skill in analyzing the data. The opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two. The expert was familiar with the Veteran’s pertinent medical history. The expert provided a thorough and detailed opinion about an area within his expertise as an audiologist. The opinion is the product of reliable principles and methods and is the result of principles and methods reliably applied to facts. The VA examiner cited medical literature in support of the opinion rendered and clearly explained the various threshold shifts and whether or not the threshold shifts could be impacted by noise exposure. While the expert did not specifically reference the private opinion, the expert clearly addressed the private opinion’s underlying premise that the Veteran’s bilateral sensorineural hearing loss was due to hazardous noise exposure. Consequently, the Board gives more probative weight to the VA examiners’ opinions. In so finding, the Board acknowledges that in June 2019 the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in McCray v. Wilkie, 31 Vet. App. 243 (2019). In McCray, the Court discussed a 2006 IOM report. The Court held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. McCray, 31 Vet. App. at 257. The Board notes that the VA examiners relied, in part, on the IOM report as a basis for providing a negative opinion. The Board finds that does not render the opinion inadequate or diminish its probative value. The Board notes that the IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the IOM report’s own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (“unlikely”). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The Board finds that the use of the word extremely also lends much support to finding that the report retains its probative value and is not inadequate. Moreover, the Court in McCray referenced “a medical text’s qualifying or contradictory aspects” as one factor on a non-exhaustive list that is relevant to the Board’s evaluation of the probative value and adequacy of a medical opinion. Here, the VA examiner relied on the findings of the IOM report and also discussed threshold shifts during service. Thus, the opinion provided is informed and based on consideration of all relevant facts in this case. In contrast, the private opinion is not entitled to significant weight because it is not based on a review of the Veteran’s file which contains such relevant evidence as in-service audiograms. Also, no supporting rationale was provided. A medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges that the Veteran believes his hearing loss is due to service. Moreover, the Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss. Therefore, the Veteran's lay opinion could possibly be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, determining the precise etiology of the Veteran's hearing loss is not a simple question as there are conceivably multiple potential etiologies of the Veteran's hearing loss. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson - including both claimants and Board members - must be determined on a case-by-case basis."). Thus, there is insufficient persuasive evidence that establishes a link between the Veteran's hearing loss and his service. There is no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. (continued on next page) The preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for bilateral hearing loss, is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.