Citation Nr: 21014963 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-19 789 DATE: March 16, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that left ear hearing loss began during active service, or is otherwise related to an in-service injury, or disease. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to January 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing is in the Veteran’s file. Entitlement to service connection for left ear hearing loss The Veteran contends he has left ear hearing loss due to in-service noise exposure. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, 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). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including other organic diseases of the nervous system, which includes sensorineural hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the question for the Board is whether the Veteran has a current left ear hearing loss disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 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 Veteran’s left ear hearing loss disability was confirmed at the April 2015 VA examination. The Board also recognizes in service noise exposure has been conceded in this case and service connection for tinnitus was awarded on that basis. Thus, the question remaining for the Board is whether his hearing loss is related to his military service. A review of the Veteran’s service treatment records (STRs) show that he was provided several audiograms during service which show fluctuating audiometry findings. In May 1972, his left ear puretone thresholds were with 5 at 500 Hertz, 5 at 1000 Hertz, 0 at 2000 Hertz, no measurement at 3000 Hertz, and 0 at 4000 Hertz. In August 1972, the left ear results were 25, 10, 5, 0 and 0 at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. In January 1974, the left ear readings had shifted to 5, 5, 0 and 0 at 500, 1000, 2000 and 3000 Hertz, with 4000 Hertz not measured. In March 1974, the left ear results were 15, 10, 5, 5 and 10 at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. And, at his January 1977 separation examination, the left ear puretone thresholds were 10, 0, 0, 0, and 0 at 500, 1000, 2000, 3000, and 4000, respectively. Thus, during service, the Veteran’s left ear audiometry results fluctuated, most notably at the 500 Hertz level, with readings going from 5 to 25 to 5 to 15 to 10. Private treatment records show the Veteran had a sudden profound neurosensory hearing loss with vertigo in June 2008. An MRI was conducted, but there was no known etiology for the sudden onset of hearing loss. On follow up, the Veteran’s vertigo improved but his hearing loss did not. At the April 2015 VA examination, the Veteran reported having noise exposure in service from working in a flight line crew, but he wore hearing protection. Post service, he worked in cargo for airlines off the flight line and mostly wore earplugs, but there were no airplanes in the area where he worked. The examiner opined that it is less likely as not that the Veteran’s left ear hearing loss was caused by or a result of an event in military service. The examiner stated the Veteran’s hearing was well within normal limits at the time he separated from service and his left ear hearing loss had a sudden onset in 2008. The examiner noted that his sudden onset of hearing loss is indicative of a medical problem, and not related to acoustic trauma. The Veteran submitted lay statements from his family members in May 2015. The Veteran’s sons stated they had to speak louder for their father to hear them over the years. The Veteran’s wife, being married to the Veteran for 37 years, attested that she observed gradual hearing loss. At the February 2019 Board Hearing, the Veteran testified that he first sought care for hearing loss in 2008, when the hearing suddenly stopped in his left ear. See Hearing Transcript, p. 5. Post-service, the Veteran stated he worked at a boat company, the airline industry for four years, freight work, then at a lumber yard, and currently with cars. The Veteran was afforded another VA examination in November 2019. The examiner found that his left hear hearing loss was less likely than not caused by an in-service injury, event or illness. The basis for the examiner’s opinion was that the Veteran’s service-related audiograms all revealed normal left ear hearing, including at the separation examination. The examiner also noted there were no permanent positive significant threshold shifts during service. The examiner noted the temporary shifts in the left ear from enlistment to separation, but noted that the shifts were not confirmed by follow up examinations. Also, the shifts were at 250 and 500 Hertz, which are inconsistent with shifts in hearing related to noise exposure. Shifts related to noise exposure would more likely be in higher frequencies. The examiner also noted there are many reasons shifts in hearing could occur. While noise exposure is one possible reason, it could also be due to ear infection cerumen occlusion, tinnitus during testing, test inconsistencies, and poor headphone placement. He noted puretone testing is a behavioral test and there can be variances during testing. The examiner explained that this is why only significant shifts are considered and why they should be followed up by examination. The Veteran’s low frequency, temporary shifts on the August 1972 audiogram are not factors for delayed onset hearing loss from noise exposure. The examiner also noted the Veteran first sought medical attention in 2008 after a sudden onset of left ear hearing loss. There was no known potential cause for the sudden onset, and it was consistent with sudden idiopathic sensorineural hearing loss. Sudden sensorineural hearing loss (SSHL), otherwise knowns as sudden deafness is defined as an unexplained, rapid loss of hearing all at once or over a few days. It happens when there is something wrong with the sensory organs of the inner ear and frequently affects only one ear. The examiner also noted that a variety of disorders affecting the ear can cause SSHL but only 10 percent of people diagnosed with SSHL have an identifiable cause. The examiner also considered military noise exposure but noted that the Institute of Medicine’s 2006 study on delayed-onset hearing loss states that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The examiner considered the lay statements and concession of military noise exposure but found they did not outweigh the lack of objective findings and consideration of other potential factors for left ear hearing loss. Thus, the examiner concluded the Veteran’s left ear hearing loss is less likely than not (less than 50% probability) caused by or a result of military noise exposure. The Board finds that service connection for bilateral hearing loss has not been established. In weighing the evidence of record, the Board has considered the Veteran and his family member’s lay statements that his hearing loss was gradual and due to noise exposure in service. Although the Veteran and his family members are competent to attest to their experiences, they are not competent in these circumstances to opine as to the medical etiology of his left ear hearing loss, as they lack medical expertise. The Board finds the medical treatment records, which indicate a sudden onset of hearing loss, to be more probative in this regard, as they are based on contemporaneous statements and events. Additionally, although the Veteran reported that his post-service employment did not include noise exposure, the November 2019 VA examiner found the Veteran’s left ear hearing loss more consistent with SSHL, based on an evaluation of the Veteran and his treatment records. The Board attaches significant probative value to the VA opinion, as it is reasoned, consistent with other evidence of record, and included consideration of the Veteran's pertinent medical history and lay statements. See Prejean v. West, 13 Vet. App. at 448-9. Therefore, as the preponderance of the probative evidence is against the claim, direct service connection for the Veteran’s left ear hearing loss is denied. The Board also considers presumptive service connection. By Veteran’s own admission at the February 2019 Board hearing, he did not seek medical attention for left ear hearing loss until 2008 when he suddenly lost left ear hearing. The November 2019 VA examiner noted that this finding indicates that the onset of his left ear hearing loss was likely, or at least confirmed, in June 2008. While the Veteran’s family noted that there was a gradual onset of hearing loss, and the Veteran does currently have bilateral hearing loss for VA purposes, the oldest documentation for left ear hearing loss was not demonstrated until June 2008, more than thirty years after discharge. Thus, the more probative medical evidence indicates the Veteran’s hearing loss did not manifest within one year of separation. Accordingly, presumptive service connection is also not warranted, as there is no probative evidence his left ear hearing loss began within one year of separation from service. Based on the above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for left ear hearing loss on a direct and presumptive basis. The appeal must therefore be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.