Citation Nr: 21014185 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-11 660 DATE: March 11, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT A current hearing loss disability for VA compensation purposes has not been shown in the Veteran’s right ear. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1980 to June 2005. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) June 2014 rating decision of the Agency of Original Jurisdiction (AOJ). In January 2019 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record since the January 2019 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. The Board notes that the Veteran’s initial claim was for entitlement to service connection for hearing loss in both his left and right ears. In June 2020 the AOJ granted service connection for the Veteran’s left ear hearing disability. As this is considered a full grant of the benefits sought on appeal, the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). What is left for the Board to determine is whether or not the Veteran is entitled to service connection for a right ear hearing loss disability. 1. Entitlement to service connection for right ear hearing loss The Veteran contends that his right ear hearing loss is due to his military service. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, sensorineural hearing loss, will be presumed to have been incurred in or aggravated by service if manifested to a degree of 10 percent or more within one year of a veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Hearing loss disability is defined by regulation. 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, 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 United States Court of Appeals for Veterans Claims (Court) has held that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Board notes that the Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.§ 3.303(d). The Veteran contends that he was exposed to acoustic trauma during service. The American Medical Association defines “acoustic trauma” as “[a] severe injury to the ear caused by a short-duration sound of extremely high intensity such as an explosion or gunfire.” American Medical Association Complete Medical Encyclopedia 112 (Jerrold B. Leiken, M.D., & Martin S. Lipsky, M.D., eds., 2003). An acoustic trauma can cause permanent hearing loss, but does not necessarily do so. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Acoustic trauma has been conceded. In this regard, the Veteran’s service treatment records (STRs) show no complaints of, or treatment for, hearing difficulties. However, given the Veteran’s military occupational specialty (MOS), Armor Senior Sergeant, and length in service, acoustic trauma is conceded. Audiometric examinations conducted in 1980, 1986, 1990, 1992, 1994, 1995, 2001, and 2005 show no hearing loss, per 38 C.F.R. § 3.385, in the Veteran’s right ear. However, throughout his service there is, at worst, what appears to be a mild worsening in the Veteran’s right-sided hearing. In January 1980, upon entering the military, the Veteran underwent an audiometric examination. The results regarding his right ear are as follows, though the Board notes that no speech recognition test was performed: HERTZ 500 1000 2000 3000 4000 Right (dB) 15 10 5 5 5 In February 1992, the Veteran had no measurable hearing loss in any frequency except at 3000 Hertz, which was measured at 5 decibels. The same results were found in an October 1995 examination. In April 2005 the Veteran underwent an audiometric examination prior to his retirement. The results were as follows: HERTZ 500 1000 2000 3000 4000 Right (dB) 5 0 5 10 10 After retiring from the military the Veteran’s medical records include a November 2005 VA audiometric examination with the following reported findings: HERTZ 500 1000 2000 3000 4000 Right (dB) 10 15 20 20 20 The speech recognition score in the Veteran’s right ear was 98 percent. In June 2016 the Veteran underwent another audiometric examination. While, for reasons further discussed below, the June 2016 examiner’s medical opinion is inadequate for adjudication purposes, the Board finds no reason to discount the objective, measured findings in the examination. The results of the examination were as follows: HERTZ 500 1000 2000 3000 4000 Right (dB) 15 20 25 30 35 The Veteran’s speech recognition score in his right ear was 100 percent. His hearing loss in his right ear does not meet the requirements for a VA disability. The June 2016 examiner found that the Veteran’s hearing loss was “not related to military noise exposure” on the basis that, according to the American College of Occupational Medicine Noise and Hearing Conservation Committee, “a noise induced hearing loss will not progress once it is stopped.” However, overall the Veteran finds this opinion to be unclear, vague, and conclusory. As such, it is inadequate for adjudication purposes. In October 2019, pursuant to January 2019 Board remand, the Veteran underwent another VA audiometric examination. The results were as follows: HERTZ 500 1000 2000 3000 4000 Right (dB) 10 15 25 35 35 The Veteran’s speech recognition score was 98 percent. The results of the October 2019 examination appear to be broadly similar to the June 2016 examination. And, as with before, the Veteran’s hearing loss in his right ear does not rise to the level of a disability for VA purposes. 38 C.F.R. § 3.385. However, the examiner opined that, due to the fact that the Veteran was “constantly around armored vehicles and trained with high caliber weapons,” combined with being “not always able to wear ear protection due to needing to be able to hear communication,” and the “presence of [a] confirmed shift in hearing during active duty and conceded noise exposure, there is nexus to support hearing loss” which is the result of his military service. The Veteran’s post-service medical treatment records show numerous complaints over time of worsening hearing. For example, in a March 2014 audiology outpatient visit, the Veteran described himself as being “hard of hearing.” Furthermore, it is established that the Veteran requires the use of hearing aids in both of his ears. However, the diagnosis and measurement of a hearing loss disability is something that can only be done by qualified medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, while the Veteran is competent to report decreased hearing ability, his opinion about “hearing loss” with regard to the Hertz decibel findings and VA’s definition, is outweighed by the findings to the contrary by the VA examiners, medical professionals, who considered the pertinent evidence of record and found no current disability for VA purposes based on the audiograms. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). Accordingly, since the most probative evidence establishes that the Veteran has no right ear hearing loss under 38 C.F.R. § 3.385, service connection for right ear hearing loss is not warranted. Therefore, the Veteran’s claim for entitlement to service connection for right ear hearing loss must be denied. (Continued on the next page)   As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.