Citation Nr: 21014228 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 11-14 010 DATE: March 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT 1. The competent and credible evidence does not demonstrate that the Veteran’s currently diagnosed left ear hearing loss had its onset during active duty service, manifested within one year of separation, or was otherwise etiologically related to active duty service; nor did it occur during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) of his National Guard service. 2. The evidence demonstrates that the Veteran’s right ear hearing loss did not have its onset during the Veteran’s first period of active duty service or manifested within one year of separation from his first period of active duty. His right ear hearing loss clearly and unmistakably preexisted his second period of active duty service occurring from September 1990 to August 1991, but was not aggravated beyond its natural progression by such service. CONCLUSION OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to September 1977 and from September 1990 to August 1991. He also had additional service in the Army National Guard with periods of ACDUTRA and INACDUTRA. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in March 2015, May 2018, and August 2020 for further development. The Board is satisfied that there was substantial compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) The Veteran testified at a videoconference hearing before the undersigned in February 2018. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. “Active military, naval or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the concerned individual became disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the concerned individual became disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 C.F.R. § 101 (24). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For certain chronic diseases a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was “noted” during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown,6 Vet. App. 465, 469 – 70 (1994). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) 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 threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted and § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley, 5 Vet. App. at 159. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Hensley, 5 Vet. App. at 159 – 60. Generally, certain presumptions that apply to periods of active duty are inapplicable to periods of ACDUTRA and INACDUTRA, such as the presumptive incurrence or aggravation of conditions that are considered chronic, per se, if initially manifested to a compensable degree (meaning to at least 10-percent disabling) within the initial post-service year, or regarding the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010). However, where VA determines that a claimant has established veteran status for a period of ACDUTRA by establishing service connection for one disability, the claimant may take advantage of the presumption of aggravation for other preexisting disabilities claimed to have been aggravated during the same period of ACDUTRA. Hill v. McDonald, 28 Vet. App. 243, 246 (2016). In this case, the Veteran does not have a service-connected disability due to a period of ACDUTRA. As such, the presumption of aggravation does not apply. Every Veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304 (b)(1). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that “even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness”). VA may find a lack of aggravation under § 1111 if the clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 and 38 C.F.R. § 3.306); but see Horn, 25 Vet. App. at 238 (emphasizing that “neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111”). If this burden is met, then the veteran is not entitled to service-connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption has not been rebutted. See id. at 1094. In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322 (2017)); see also id. at 1094 (holding that Congress intended to “convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111”). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. See id. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Service treatment records do not show complaints of, treatment for, or a diagnosis of hearing loss. The following audiograms were obtained during the Veteran’s military service. On the authorized audiological evaluation in April 1977, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 X 5 LEFT 5 5 5 X 5 On the authorized audiological evaluation in November 1982, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 X 5 LEFT 5 5 5 X 5 On the authorized audiological evaluation in March 1989, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 35 X 25 LEFT 20 15 15 X 20 On the authorized audiological evaluation in October 1990, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 30 25 20 LEFT 10 15 10 25 35 On the authorized audiological evaluation in 1991, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 20 15 LEFT 15 25 20 25 25 Military personnel records show that the Veteran served as a bridge crewmember and an ammo specialist during active duty service, which have a moderate and low probability of noise exposure respectively. As such, the Board finds that in-service exposure to hazardous noise is conceded. Additionally, military personnel records show that the Veteran was discharged from the Army National Guard in May 1998. In an April 2012 VA audiological examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 45 40 LEFT 25 35 30 45 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The examiner opined that it was less likely than not that the Veteran’s hearing loss was due to his military service based on the Veteran’s October 1990 mobilization audiogram reflecting mild loss of hearing at 2000 Hz in the right ear and at 4000 Hz in the left ear, but his demobilization examination reflecting borderline normal hearing thresholds for these frequencies with no significant changes in thresholds for the other frequencies bilaterally. However, the examiner also found that hearing loss existed prior to service and that this pre-existing hearing loss was aggravated beyond normal progression in military service. The rationale provided was that the Veteran’s mobilization examination reflected mild loss of hearing at 2000 Hz in the right ear and at 4000 Hz in the left ear. At the February 2018 hearing, the Veteran reported that he worked in a plant running machinery for about six years prior to his deployment. During his deployment, he worked around ammunition and firing weapons and was exposed to mortar attacks. These mortar attacks occurred “practically every day” and continuously went off. He stated that the mortar attacks were louder than the machines at his work. The Veteran’s spouse stated that he did not wear hearing protection at the plant and the Veteran stated that he wore ear plugs now and then. He did not have ear plugs in service. The Veteran’s spouse reported that the Veteran’s hearing had worsened when he returned. For example, the Veteran would have the television on so loudly that she had to close her door and she would have to repeat what she said to him. The Veteran reported that he had not really noticed, but that it was bad. He also could not understand people talking to him when he came back. His spouse stated that he mostly tried to read lips. The Veteran stated that he was diagnosed with hearing loss and was issued his hearing aids in 2012. In a February 2019 VA audiological examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 55 55 50 LEFT 30 45 55 60 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 percent in the left ear. The examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was due to his military service. She noted that the Veteran’s served from June 1977 to September 1977 and from September 1990 to August 1991. Audiograms in 1977 showed hearing within normal range at the end of his first tour of duty. The examiner also noted the Veteran’s hearing testimony regarding his occupational and military noise exposure, to include his statement that the mortars were louder than the noise at the plant. However, the examiner found that the noise level at the plant would have to be weighed against the amount of time spent in the environment. She stated that the noise level in a plant for an eight hour work day, five days a week, would not need to be as loud as one impact noise, such as a mortar, to inflict hearing loss. Hearing loss was first noted in 1989 testing results during the Veteran’s work time and prior to his second deployment. Testing at demobilization in 1991 indicated no thresholds below normal range. Therefore, the Veteran’s hearing loss did not worsen during deployment. The examiner opined that the Veteran had hearing loss that pre-existed service, specifically identifying a drop below normal range at 2000 Hz in testing dated 1990, but found that this was no aggravated beyond normal progression in military service as the Veteran’s hearing thresholds did not decrease during his deployment and were actually slightly better than prior to his deployment. The examiner also stated that late onset hearing loss had not been supported by research or current literature. However, this would not be applicable in this case since the Veteran returned to work in a high noise level environment. She opined that his hearing loss was not related to military noise exposure, but more likely related to years of occupational noise exposure. In a September 2020 VA audiological examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 65 65 70 LEFT 35 40 55 55 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. The examiner indicated that there was clear and unmistakable evidence that the Veteran had right ear hearing loss prior to his second period of service from September 1990 to August 1991 based on a 1989 audiogram showing normal hearing except at 2000 Hz in the right ear. Further, the examiner indicated that there was clear and unmistakable evidence that the Veteran’s pre-existing right ear hearing loss was not aggravated by his subsequent period of service as he had normal hearing in both ears after his deployment. The examiner indicated that it was less likely than not that the Veteran’s hearing loss as note incurred in or etiologically related to service. She found that the examiner’s hearing loss was consistent with occupational noise exposure he would have experienced at a machine shop and that he had been exposed to years of occupational noise outside of service. She stated that there was no literature she was aware of that supported delayed onset hearing loss after evidence of a normal examination after excessive noise exposure. The examiner also addressed the February 2018 testimony by the Veteran and his spouse were consistent with issues expected with the hearing loss present on the examinations after the service; however, there was no evidence that the hearing loss began during service as there were no complaints of hearing loss during service. According to post-service VA treatment records, the Veteran had occupational noise exposure while working in a box plant, sign shop, deer processing plant, and construction. He also hunted recreationally. The first notation of hearing loss was in March 2012. 1. Entitlement to service connection for left ear hearing loss is denied. Based on a careful review of all of the subjective and clinical evidence, the preponderance of the evidence weighs against finding service connection for left ear hearing loss is warranted. The record shows that the Veteran has a current diagnosis for left ear hearing loss. Service treatment records during his active duty service and National Guard service do not show any complaints of, treatment for, or diagnosis of hearing loss. While an October 1990 audiogram showed abnormal hearing at 4000 Hz in the left ear, the Veteran consistently denied hearing loss in his reports of medical history and the later 1991 audiogram showed normal hearing at all thresholds. The Board notes that the Veteran and his spouse have indicated that his hearing loss began during his second period of active duty service (September 1990 to August 1991). However, the Board finds that these statements are outweighed by his contemporaneous service treatment records, which did do not show any complaints of, treatment for, or diagnosis of hearing loss. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Additionally, the earliest documentation of hearing loss in the evidence of record was in March 2012, approximately 21 years since separation from active duty service and 14 years since separation from the Army National Guard. The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board finds the September 2020 VA examiner’s medical opinion highly probative to the issue of whether the Veteran’s left ear hearing loss was related to service. The examiner possesses the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The opinion was based on a review of the claims file and an in-person examination of the Veteran. It is clear that the examiner took into consideration all relevant factors in giving her opinion. Significantly, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for hearing loss. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Sensorineural hearing loss is considering to be an organic disease of the nervous system, and therefore the presumption in favor of chronic diseases is applicable in this case. 38 C.F.R. §§ 3.307, 3.309(a). However, there is no evidence that left ear hearing loss manifested to a compensable degree within one year following discharge. Separation audiogram results were within normal limits, the Veteran denied any hearing loss at separation, and there are no medical records concerning hearing loss dated from within the first post-service year. As such, the preponderance of the evidence is against a finding that left ear hearing loss manifested to a compensable degree within the one-year presumptive period, and therefore presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). The Board has also considered the Veteran and his spouse’s lay statements. Although the Board recognizes that the Veteran and his spouse are competent to describe his observable symptoms of hearing loss, they are not competent to opine as to the etiology of this disability as they have been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the lay opinions that the Veteran’s hearing loss was related to his in-service noise exposure do not constitute competent medical evidence and lack probative value. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for left ear hearing loss. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for right ear hearing loss is denied. Based on a careful review of all of the subjective and clinical evidence, the preponderance of the evidence weighs against finding service connection for right ear hearing loss is warranted. The record shows that the Veteran has a current diagnosis for right ear hearing loss. As an initial matter, the Board observes that the March 1989 re-enlistment examination, to include the clinical evaluation, does not show that the Veteran had hearing loss. As such, the presumption of soundness arises, and the burden has shifted to VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s right ear hearing loss was both pre-existing and not aggravated beyond its natural progression by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board finds that there is clear and unmistakable evidence that the Veteran had right ear hearing loss prior to his second period of active duty service. This evidence consists of the following: (1) the March 1989 audiogram showing abnormal hearing at 2000 Hertz in the right ear and (2) the September 2020 VA examiner’s finding that the Veteran’s right ear hearing loss clearly and unmistakably pre-existed his second period of active duty service and was not aggravated beyond its natural progression during service. In this regard, the Board finds the September 2020 VA examiner’s medical opinion highly probative in this matter. The examiner interviewed the Veteran, reviewed his claims file, to include all pertinent service treatment records, and conducted a physical examination. The examiner then offered a reasoned conclusion based upon the facts and applicable medical principles. There is no indication that the examiner did not possess the necessary education, training, and expertise to provide the requested opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The record reflects that the examiner had sufficient facts and data on which to base her conclusions. Continuing the analysis, the Board finds that there is clear and unmistakable evidence that the Veteran’s right ear hearing loss was not aggravated beyond its natural progression in service. This evidence consists of the September 2020 VA examiner’s finding that there was clear and unmistakable evidence that the Veteran’s pre-existing right ear hearing loss was not aggravated beyond its natural progression during service. As stated before, the Board finds the September 2020 VA examiner’s medical opinion highly probative in this matter. See Grottveit, 5 Vet. App. at 93. Further, the subsequent October 1990 and 1991 audiograms show that the Veteran’s right ear hearing loss did not worsen and, in fact, improved across all thresholds. Additionally, service treatment records do not show that the Veteran reported hearing loss during service. These records are consistent with the September 2020 VA examiner’s findings. The Board has also considered the Veteran and his spouse’s lay statements. Although the Board recognizes that the Veteran and his spouse are competent to describe his observable symptoms of hearing loss, they are not competent to opine as to the etiology of this disability as they have been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the lay opinions that the Veteran’s hearing loss was related to his in-service noise exposure do not constitute competent medical evidence and lack probative value. In sum, the Board finds that VA has met its burden to rebut the presumption of soundness by clear and unmistakable evidence. As such, the Veteran is not entitled to service connection and his claim must be denied. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.