Citation Nr: 21015316 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-08 932 DATE: March 17, 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 entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107: 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in August 2018 instructing the RO to obtain an addendum opinion regarding whether the Veteran’s hearing loss. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained an April 2019 VA examination. The Board finds the RO substantially complied with the August 2018 remand directives. Entitlement to service connection for left ear hearing loss. The Veteran contends that he has bilateral hearing loss that is related to in-service exposure to noise from artillery fire, including 3.5 rocket launchers, 45 caliber pistols, M14 and M16 rifles, and M79 grenade launchers. The Board notes that the Veteran’s reports of exposure to noise from artillery fire is consistent with the circumstances of his service. Specifically, his DD Form 214 reflects that he served as a light weapons infantryman. Therefore, his reports in that regard are considered credible. See 38 U.S.C. § 1154(a). To establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection is presumed when the chronic disease is noted on the Veteran’s service treatment records or manifested to a degree of 10 percent within one year of discharge from service. 38 C.F.R. § 3.307(a)(3). For VA purposes, impaired hearing is considered disabling 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. Prior to the Board’s August 2018 remand, the Veteran was provided only one examination related to his hearing loss which occurred in November 2013. Testing conducted at that examination revealed a bilateral hearing loss disability for VA purposes, as defined in 38 C.F.R. § 3.385. The VA examiner acknowledged the Veteran’s reports of in-service exposure to noise from small and large weapons fire. She also noted that pre-induction, induction, and separation audiograms in the Veteran’s service treatment records reflect that no shift in the Veteran’s hearing occurred during his active service, even when International Standards Organization (ISO) and American Standards Association (ASA) conversion applied. She concluded, “Given no shift in hearing occurred during or following military service, it was less likely than not that the veteran’s hearing loss is related to military service.” The Board concluded that the examiner’s assertion that no shift occurred in the Veteran’s auditory thresholds during his active service for both ears was contrary to the evidence of record. It was unclear whether the January 1966 induction audiogram and November1967 separation audiogram used ASA units or ISO units. Therefore, the Board converted the findings of the both examinations from ASA units to ISO units. This conversion showed that there were upward threshold shifts at multiple frequencies in both ears. As such, the November 2013 VA examiner’s statements were based on an inaccurate understanding of the record and were not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Therefore, remand was required to provide the Veteran an adequate examination. The Veteran was provided a second examination in April 2019. Audiological testing yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 55 70 LEFT 5 20 25 55 65 Speech audiometry revealed speech recognition ability of 92 in the left ear. The VA examiner reported the left ear to have sensorineural hearing loss in the frequency range of 500-4000 Hz. The examiner opined the Veteran’s left ear hearing loss was less likely than not that the Veteran’s military noise exposure caused his hearing loss. The examiner wrote that the Veteran reported military noise exposure from rifle, pistols, rocket launchers, and grenade launchers in service. He denied civilian occupational, and recreational/household noise exposure. He also denied history of ear disease, vertigo, TBI and family history of early onset hearing loss. The March 1965 pre-enlistment audiogram, January 1966 enlistment audiogram, and separation audiogram showed hearing within normal limits in both ears. The November 2013 VA examination compared the pre-enlistment audiogram with the separation audiogram and finding no significant threshold shifts in either ear. This was an appropriate comparison. On the other hand, strictly comparing enlistment and separation audiograms, significant threshold shifts are noted in the right ear only, at 2000 and 4000 Hz. There were no significant threshold shifts in the left ear. The examiner also noted that an audiogram is the objective standard for noise injury. A significant threshold shift on the audiogram may indicate a noise injury. With no significant threshold shift, there is no noise injury. The Institute of Medicine (2006) stated there was insufficient scientific basis given the current understanding of auditory physiology to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Given the absence of significant threshold shifts in the left ear during military service, it is less likely than not that the Veteran's current hearing loss in the left ear was caused by or a result of noise exposure during the veteran's military service. The Board acknowledges the Veteran’s assertion that his left ear hearing loss was related to his military service. However, lay persons are not considered competent to medically attribute hypertension to another disability as doing to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent medical evidence of record answered the question and did not support a causal relationship between the Veteran’s left ear hearing loss and his military service. (Continued on the next page)   Overall, the evidence of record showed normal hearing before service, in service, and at separation from service for the left ear. Complications with hearing loss did not developed until several years after discharge from service. Medical examinations found no nexus between the left ear hearing loss and noise exposure in service. No other objective medical evidence has been associated with the record to contradict this finding. Accordingly, the criteria for entitlement to service connection for left ear hearing loss has not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for left ear hearing loss, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.