Citation Nr: 21015508 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-04 524 DATE: March 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss did not begin during service or in the year after service and is not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1967 to March 1969. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously remanded by the Board in July 2019 and June 2020; there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, while the Veteran submitted relevant evidence in January 2021, after issuance of the August 2020 supplemental statement of the case, a waiver of Agency of Original Jurisdiction (AOJ) consideration is not required as the appeal to the Board was filed after February 2, 2013. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(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’ the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For a Veteran who served 90 days or more of active service after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a); 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran, who separated from service in 1969, seeks service connection for bilateral hearing loss, which he contends is related to noise exposure during service. Hearing loss for the purpose of VA disability compensation is considered 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 Veteran has a current diagnosis of bilateral hearing loss. See March 2013 and January 2020 VA examination reports. Objective testing confirms the bilateral hearing loss is considered a disability for VA purposes. 38 C.F.R. § 3.385. Turning to the second element of service connection, the Veteran reports that he was exposed to excessive noise during service, to specifically include working on running airplanes behind the propellers without hearing protection. Additionally, the Veteran’s military personnel records list a military occupation specialty of aviation ordinancemen/propeller repairmen, which, according to VA policy, indicates a highly probable probability of exposure to hazardous noise. Therefore, the Board finds that the Veteran was exposed to excessive noise during service and the second element of service connection is met. Accordingly, the question in this case is whether a causal relationship or nexus exists between the Veteran’s bilateral hearing loss and in-service noise exposure. The Board finds the weight of the evidence is against the claim. The Veteran’s service treatment records (STRs) show that he had his hearing tested in November 1966, at the beginning of his service, and in March 1969, at his separation from active duty and the Veteran’s hearing was normal on both examinations. The Board notes that service department audiometric tests prior to October 31, 1967 were generally in ASA (American Standard Association) units and require conversion to ISO (International Organization for Standardization) units. Additionally, as it is unclear whether the March 1969 separation examination auditory thresholds were recorded using ASA units or ISO-ANSI units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. While the ASA units generally assigned lower numeric scores to hearing loss than the ISO units, even after conversion, the audiological evaluations from the entrance and separation examinations document normal auditory thresholds. Furthermore, there were no reports of ear trouble or symptoms of hearing loss in the Veteran’s STRs. Additionally, the Veteran reported no ear trouble or hearing loss on his March 1969 separation examination Report of Medical History. The Veteran was afforded VA examinations in March 2013 and January 2020 and both examiners provided negative nexus opinions. However, as the March 2013 and January 2020 VA examiners’ rationale essentially relied solely on the absence of documentary evidence as a rationale for the negative nexus opinion and did not consider the Veteran’s lay statements, the opinions have little probative weight. In July 2020, pursuant to the June 2020 Board remand, the RO obtained an addendum opinion. The July 2020 VA examiner noted that while it is conceded that the Veteran was exposed to hazardous noise exposure during military service, it is less likely than not that the Veteran’s hearing loss was incurred in or caused by his military service. While the Veteran contends that he first experienced decreased hearing during service, the VA examiner noted that the Veteran’s hearing acuity was measured at entrance and separation from military service and documented stable thresholds. The examiner explained that acoustic trauma due to noise exposure has been shown to have immediate effects and would have resulted in a threshold shift. She noted that The National Institute for Occupational Safety and Health (NIOSH) recommends that a significant threshold shift is defined as a 15 dB shift or more at any one frequency; additionally, a standard threshold shift is defined as a change in hearing threshold, relative to the baseline audiogram, of an average of 10 dB or more at 2000, 3000, and 4000 Hertz in one or both ears. However, the Veteran’s audiological examinations did not document a significant shift in thresholds from induction to discharge. The examiner found that to be etiologically relevant as current research indicates immediate onset of hearing loss due to noise exposure and the Institute of Medicine reports that it is unlikely that such delayed effects occur, suggesting that if the Veteran’s hearing loss was caused by military noise exposure, it would have been present during his separation examination. There is also no competent medical opinion to the contrary. To the extent that the Veteran asserts his bilateral hearing loss incurred in active duty, the Board finds that he is competent to report experiencing decreased hearing, but not competent to determine the etiology of such a disability, as it is a complex medical question beyond the ability of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, there is no evidence that the Veteran’s hearing loss manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. Instead, the first evidence of bilateral hearing loss is over 40 years after active duty service. Nor is there any competent evidence of an in-service manifestation of hearing loss to allow for service connection based on continuity of symptomatology. See Walker, supra. While the Board acknowledges the Veteran’s contention that he first noticed decreased hearing in service and it has increased in severity in the years since service, as noted above, the Veteran’s March 1969 separation examination documents normal auditory thresholds, even after conversion to ISO-ANSI units. While the Board finds the Veteran competent to report experiencing decreased hearing and has no reason to question his credibility, the Board finds the objective evidence of record, to specifically include the March 1969 separation examination report, which includes the Veteran’s Report of Medical History denying hearing loss, more probative than the Veteran’s subjective reports over four decades after separating from service. (Continued on the next page)   In conclusion, given the Veteran’s entrance and exit examinations do not note hearing loss for VA purposes, even after conversion to ISO-ANSI units, and there is no objective evidence of bilateral hearing loss for VA purposes until over 40 years after the Veteran left active service, the preponderance of the evidence weighs against the claim and is not in equipoise. Accordingly, service connection for bilateral hearing loss must be denied. DUSTIN L. WARE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, 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.