Citation Nr: 21015165 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-24 204 DATE: March 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence of record does not show that it is at least as likely as not that the Veteran’s bilateral hearing loss had its onset during or is otherwise related to active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from March 1991 to March 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board remanded the case for further development most recently in September 2020. The case has since been returned to the Board for appellate review. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct 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 causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for bilateral hearing loss For VA purposes, 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 (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA recognizes that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The absence of in-service evidence of a hearing disability (meeting the criteria of 38 C.F.R. § 3.385) during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be established where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran contends that he currently has bilateral hearing loss which is etiologically related to active duty service. A review of the Veteran’s service treatment records (STRs) showed that during an examination conducted in February 2011, prior to separation, the Veteran reported a history of gradual decreased hearing, but reported no significant communication problems. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 15 5 LEFT 10 5 10 10 5 Speech audiometry revealed speech recognition ability of 100 percent in both ears, using the Maryland CNC word list. The examiner diagnosed normal peripheral hearing sensitivity in both ears. The Veteran filed his claim for entitlement to service connection for bilateral hearing loss in October 2011. In December 2011, the Veteran underwent a VA audiological examination. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 15 15 15 LEFT 10 5 10 10 10 Speech audiometry revealed speech recognition ability of 100 percent in both ears, using the Maryland CNC word list. The examiner diagnosed normal hearing bilaterally. She explained that although the Veteran reported that he noted a decrease in hearing in 2005 following one week of training exposure at Little Rock Air Force Base to ground burst stimulators, the results of her examination indicate that there could not have been a significant decrease in hearing at that time. The Veteran underwent another audiological examination in March 2017. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 10 0 5 LEFT 15 5 5 5 15 The examination did not address speech recognition ability or contain any diagnosis. See Medical Treatment Record – Government Facility, received by VA in August 2017. Following a February 2018 Board remand, the Veteran next underwent a VA examination for bilateral hearing in October 2019. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 20 25 LEFT 20 15 15 20 25 Speech audiometry revealed speech recognition ability of 100 percent in both ears, using the Maryland CNC word list. The examiner concluded that the Veteran had sensorineural hearing loss in both ears in the frequency range of 6000 Hz or higher, but that the Veteran’s hearing did not meet the criteria to be considered a disability for VA purposes. He opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He explained that the Veteran’s symptoms are subjective only and that the objective examination showed normal results. He stated that although the Veteran had noise exposure during military service, there was no documentation of a hearing loss in the medical records. He found there was no evidence of record that the Veteran had a hearing loss and no objective evidence of a chronic condition. He concluded that a nexus had not been established. An addendum medical opinion was obtained in February 2020 from the VA examiner who conducted the October 2019 VA examination. He explained that the Veteran repeated normal audiograms demonstrating no evidence of hair cell damage. He stated that the hearing loss noted at the 8000 khz in the most recent audiogram would not represent hearing loss by VA standards. He concluded that there was no hearing loss documented to support granting service connection for bilateral hearing loss. This examiner also relied on the 2005 Institute of Medicine of the National Academies, Noise and Military Service: Implications for Hearing Loss and Tinnitus, which stated that the “probability of acquiring noise-induced hearing loss associated with service in the military, or in specific branches of the military, for a given individual cannot be determined.” Following the June 2020 Board remand, an addendum medical opinion was obtained in June 2020. The June 2020 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She explained there was not significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is object evidence of no permanent auditory damage on active duty from conceded noise. She noted there was no report of complaint or treatment for hearing decrease in the STRs or at separation. She further noted that the Veteran’s MOS was integrated Avionics Systems Heavy Craftsman which had a high probability for hazardous noise exposure. She stated that although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. She explained that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. She concluded that the evidence was against a nexus in this case and, therefore, it was less likely than not that the Veteran’s hearing loss is related to military noise exposure. Following the September 2020 Board remand, the Veteran underwent an additional VA examination for bilateral hearing in October 2020. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 25 25 LEFT 20 25 20 20 25 Speech audiometry revealed speech recognition ability of 96 percent in both ears, using the Maryland CNC word list. The examiner diagnosed sensorineural hearing loss in both ears in the frequency range of 6000 Hz or higher. The VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s entrance and separation examinations showed normal hearing for VA purposes, The examiner explained that there was no significant permanent shift in hearing thresholds beyond test variability for entrance to separation, which was object evidence of no permanent auditory damage on active duty from conceded noise. The examiner stated that although the Veteran’s MOS had a high probability of hazardous noise exposure, there was no objective evidence of a chronic condition in the medical records and no documentation of a hearing loss in the medical records upon separation in 2011. The examiner noted there was no complaint of or treatment for hearing decrease in the STRs or at separation. The examiner explained that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The examiner concluded that the evidence was against a nexus in this case and, therefore, it was less likely than not that the Veteran’s hearing loss is related to military noise exposure. An addendum medical opinion was obtained in November 2020 from the VA examiner who conducted the October 2020 VA examination. The VA examiner explained that the baseline was revised in June 2011 and a new reference audiogram was established to reflect the Veteran’s auditory thresholds at that time. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 0 15 LEFT 20 0 5 5 15 The VA examiner noted that there was a persistent threshold shift at 1000Hz between an audiogram conducted on June 15, 2011 and another (she does not list the specific date of that audiogram) conducted in 2011, but stated that the hearing thresholds remained normal for VA purposes, concluding that the Veteran’s hearing at separation from service in 2011 was normal for VA purposes. She explained that the March 2017 audiogram showed no significant threshold shift from the June 15, 2011 audiogram, noting that the test results for these two tests were essentially the same. The examiner stated that although the Veteran sustained a persistent threshold shift, the was no high frequency notch, and therefore it was less likely than not that the Veteran’s current hearing loss was related to his period of service. The examiner noted that the Veteran reported that his post-service employment duties as a civil service employee were essentially the same as in service and that his post-service work requirements included noise exposure to running aircraft, rivet guns, generators, and repair depot noise. When questioned on whether he used ear protection, he responded “[w]hen I can.” The examiner noted that hearing loss due to excessive noise is well documented. The examiner explained that due to the anatomical and physiological construct of the hearing mechanism, the delicate structures with the inner ear or cochlea, including the auditory hair cells, are vulnerable to high sound pressure levels. The examiner stated that a typical audiometric configuration will result in a loss of sensitivity in the high frequency range due to damage of the hair cells responsible for the high frequency sounds. The examiner explained that a “noise notch” can develop in the 3000Hz-6000Hz range. The examiner stated that the low frequency range is affected very little, if at all, by intense sound levels. The examiner noted that once the hair cells are damaged, the result is a permanent loss of sensitivity in that frequency range, and that this result is independent of other causes of hearing loss. The examiner stated that other causes of hearing loss included presbycusis or aging, blockage of the blood supply to the ear (stroke), Meniere’s disease, acoustic neuroma (tumor on the hearing nerve), trauma, middle ear infection and its sequelae. The examiner explained that some of these causes could result in audiometric configurations as hearing loss caused by noise and noted that a thorough history from the individual as well as detailed examination and testing is essential to determine the cause of an individual’s hearing loss. After careful consideration, the Board finds that the most probative evidence of record does not show that it is as likely as not that the Veteran’s current hearing loss disability is etiologically related to military service. The December 2011 VA examiner, the October 2019/February 2020 VA examiner, and the October 2020/November 2020 VA examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was etiologically related to military service. As the examiners conducted relevant testing, and made clinical findings consistent with their expertise as medical professionals, the Board finds their reports, when taken together, to be of significant probative weight. Moreover, the results of the most recent audiogram (October 2020) does not show that the Veteran has a right or left ear auditory threshold of 40 decibels or greater for any of the designated frequencies (500, 1000, 2000, 3000, 4000 Hertz), that he has at least three auditory thresholds of 26 decibels or greater for the designated frequencies, or that he has a speech recognition score using the Maryland CNC test of less than 94 percent, and there is no other probative evidence in the claim which suggests that the Veteran has hearing loss of such severity to constitute a disability for VA purposes under the pertinent regulations. Thus, the evidence does not demonstrate a current bilateral hearing loss “disability” for VA purposes under the provisions of 38 C.F.R. § 3.385. The Veteran has not challenged the accuracy of the October 2020 examination, nor has he submitted additional evidence in support of his claim showing that his bilateral hearing loss meets the threshold requirements set out by 38 C.F.R. § 3.385. See Layno v. Brown, 6 Vet. App. 465 (1994). Rather, such may only be established by audiometric testing. The evidence in this case simply does not support a finding that he currently has a hearing loss disability for VA purposes. The Board may not grant the Veteran service connection, even at a noncompensable level, when the standard for a disability has not been met. Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C. §§ 1110, 1131. The evidence reflects that the Veteran does not have a current bilateral hearing loss disability for VA purposes. In the absence of proof of current disability, the claim of service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection for bilateral hearing loss is not warranted. The Board has considered the lay statements and contentions made by the Veteran, his spouse, and his representative. However, the ability to diagnose and etiologically relate bilateral hearing loss to military service requires complex medical knowledge and specialized audiometric testing that is beyond the capacity of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.