Citation Nr: 21015871 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-11 806 DATE: March 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss for substitution and/or accrued benefits purposes is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss for substitution and/or accrued benefits purposes are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1964 to February 1968, with subsequent reserve service. He died in March 2016, and his surviving spouse has substituted as the appellant in this appeal. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in September 2015. This case was previously remanded to the AOJ in September 2018, for additional development. In an August 2020 rating decision, the AOJ granted service connection for tinnitus for substitution purposes. The case was subsequently returned to the Board. The only remaining issue on appeal is service connection for bilateral hearing loss. The appellant is advised that after her prior claim for Dependency and Indemnity Compensation (DIC) was denied, the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), was enacted, effective January 1, 2020. The BWN Act creates new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam. See 38 U.S.C. § 1116A (effective January 1, 2020). The appellant may wish to file a new DIC claim at the AOJ. 1. Service connection for bilateral hearing loss The appellant contends that the Veteran incurred bilateral hearing loss due to noise exposure in service, specifically, exposure to loud noise from aircraft on an aircraft carrier. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385 ), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). The results of the Veteran's June 2015 VA audiological examination confirm that he had sufficient hearing loss in each ear to be considered a disability according to the requirements of 38 C.F.R. § 3.385. He had a current diagnosis of bilateral sensorineural hearing loss, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with bilateral hearing loss until August 2012, decades after his separation from service and decades outside of the applicable presumptive period. As the Veteran’s service personnel records reflect that he served as an aviation boatswain’s mate, his noise exposure during service is conceded. The Veteran had in-service audiological evaluations during active duty in February 1964, June 1965, and February 1968, at which time auditory thresholds were recorded. The Board notes that service department audiometric readings prior to January 1, 1967 must be converted from American Standards Association (ASA) units to International Standard Organization (ISO-ANSI) units. On entrance medical examination in February 1964, audiometric testing revealed right ear decibel thresholds of 5 (20), 5 (15), -5 (5), -5 (5), and -5 (0), and left ear decibel thresholds of 10 (25), 5 (15), 0 (10), -5 (5), and -5 (0), at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. On audiological examination in June 1965, audiometric testing revealed right ear decibel thresholds of -10 (5), -10 (0), -10 (0), -10 (0), -10 (-5), and left ear decibel thresholds of -10 (5), -5 (5), -10 (0), -10 (0), -5 (0), at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. The units as recorded in the above examinations have been converted to ISO-ANSI units, which are represented by the figures in parentheses above. On separation medical examination in February 1968, audiometric testing revealed right ear decibel thresholds of 10 (25), 0 (10), 5 (15), 0 (10), and 0 (5), and left ear decibel thresholds of 0 (15), 5 (15), 5 (15), 0 (10), and 5 (10), at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. However, because it is unclear whether such thresholds were recorded in 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. Service treatment records from the Veteran's periods of reserve service show that audiometric testing in September 1973 using ISO-ANSI units revealed right ear decibel thresholds of 0, 0, 0, 0, and 15, and left ear decibel thresholds of 0, 0, 0, 0 and 5, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. Audiometric testing in August 1975 using ISO-ANSI units revealed right ear decibel thresholds of 0, 10, 5, 5, and 5, and left ear decibel thresholds of 0, 0, 0, 0, and 5, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. Audiometric testing in September 1977 using ISO-ANSI units revealed right ear decibel thresholds of 0, 10, 0, 5, and 10, and left ear decibel thresholds of 5, 0, 0, 5 and 15, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. On VA audiology consult in August 2012, the Veteran complained of left ear tinnitus, which had been present for several years. He also complained of left ear hearing loss, and said he was unsure of when he first noticed the hearing loss. He reported military noise exposure from aircraft, including helicopters, with at least some use of hearing protection devices. He denied occupational and recreational noise exposure. The diagnostic impression was normal hearing sloping to severe sensorineural hearing loss in the left ear, and mild sensorineural hearing loss in the right ear; the examiner indicated that he had asymmetric hearing loss. He was provided with hearing aids. While the Veteran was competent to report experiencing symptoms of hearing loss, he did not claim that he had such symptoms since service. In fact, contemporaneous treatment records show that he denied hearing loss in reports of medical history dated in September 1973, March 1975, September 1977, and March 1979. The Board finds that continuity of hearing loss symptomatology since active service is not shown. Service connection for bilateral hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s bilateral hearing loss and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. On VA examination in June 2015, the Veteran reported noise exposure in service while working on the flight deck of an aircraft carrier, and during rifle practice. He reported post-service noise exposure driving a truck and riding a motorcycle. The VA examiner diagnosed the Veteran with bilateral hearing loss and opined that the Veteran’s bilateral hearing loss was less likely as not related to service because the Veteran had normal hearing bilaterally at separation and because there was no permanent positive threshold shift. The Board previously remanded this case for a supplemental opinion, finding that it was unclear whether the VA examiner considered the February 1968 audiometric data under both ASA and ISO-ANSI standards. The July 2020 VA examiner reviewed the claims file and considered the in-service audiometric findings after converting them to ISO standards. The examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including noise exposure. The rationale was that there was no permanent hearing threshold shift or hearing loss during the Navy active duty period 1964-68, or during the Navy reserve period 1973-1977. From the separation audiogram in 1968 through the Navy Reserve in audiogram 1977, there was no permanent hearing threshold shift or hearing loss. The examiner opined that this is objective evidence that there was no acoustic trauma incurred in or caused by military noise exposure, and added that current medical literature does not support delayed onset of noise-induced hearing loss as exhibited on the audiogram. There was no evidence of hearing loss during service and the Veteran did not report hearing loss or hearing difficulty at the time of separation. The examiner stated that “Noise and Military Service - Implications for Hearing Loss and Tinnitus” Institutes of Medicine of the National Academy (2006) indicated that current knowledge of cochlear physiology does not provide sufficient scientific basis for the existence of delayed-onset hearing loss, and that Mathur, et al. (July 2018) in an update on “Noise Induced Hearing Loss Clinical Presentation” indicated that once noise exposure is discontinued, noise-induced hearing loss does not occur. While the appellant believes the Veteran’s bilateral hearing loss was related to an in-service injury, event, or disease, including noise exposure, she is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.