Citation Nr: 21015900 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-13 925 DATE: March 18, 2021 ORDER Entitlement to service connection for hearing loss is denied. FINDING OF FACT The competent and credible medical evidence does not establish that bilateral hearing loss was incurred during or within one year of active duty or was caused by any aspect of active duty. In addition, the Veteran's bilateral hearing loss is not shown to be caused or aggravated by his service-connected tinnitus. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Air Force as a security specialist from December 1978 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in September 2018 and September 2019 when it was remanded for further development. The Board finds that there has been substantial compliance with the September 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As such, the Board determines that the appeal may be decided without prejudice to the Veteran. See D'Aries v Peake, 22 Vet. App. 97, 104 (2008). Service Connection In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Disorders diagnosed after discharge 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); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Service connection is also warranted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385 . Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hearing Loss The Veteran contends that his hearing loss incurred in or was caused by noise exposure in-service. Alternatively, the Veteran contends that his hearing loss was proximately caused or aggravated by service-connected tinnitus. The Veteran’s service treatment records (STRs) are associated with the claims file. In a December 1978 enlistment report of medical examination, the Veteran’s ears and drums were normal. Audiometric testing showed normal hearing acuity. The Veteran stated his health was excellent and denied hearing loss and ear, nose or throat trouble. See June 2011 STR-Medical, p.8. In an April 1982 audiogram, the audiologist noted that the Veteran had previous significant noise exposure that included the flight line and firing range. The test results again showed normal acuity. See June 2011 STR-Medical, p.18. In a July 1984 discharge report of medical examination, the clinical evaluation revealed normal ears and drums. The Veteran stated that he was in good health and denied hearing loss. Test results were within 10 decibels or less of previous tests and remained in the normal range. See June 2011 STR-Medical, p.16. In an August 2011 VA treatment record, a physical therapist noted that the Veteran had no barriers to learning, including hearing. See September 2011 Medical Treatment Record-Government Facility, p.11. In December 2012, the Veteran underwent an audiometric examination. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 10 25 30 LEFT 10 10 15 25 35 Speech recognition ability was 92 percent in the right ear and 92 percent in the left ear. See June 2013 VA Examination, p.4. In a December 2012 audiology consult note, the Veteran was seen for complaints of hearing loss. The Veteran reported that his mother complained that she had to repeat herself often. The Veteran had constant tinnitus which was worse in the left ear and he denied any recent ear pain, pressure, drainage, infections or surgery. Both external auditory canals were clear and the tympanic membranes were visible. The audiologist concluded that the Veteran had bilateral mild to moderately severe sensorineural hearing loss from 4000-8000 Hz. The Veteran had good speech recognition and normal middle ear function. Also, at the time the Veteran was not using a hearing aid. Medical Treatment Record-Government Facility, p.1. In July 2013, the Veteran was afforded a hearing loss and tinnitus VA examination. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 30 30 LEFT 10 10 25 40 45 Speech recognition ability was 94 percent in the right ear and 94 percent in the left ear. The audiologist diagnosed sensorineural hearing loss in the right and left ear at 500-4000 Hz range. The Veteran’s hearing loss did impact his ordinary conditions of daily life, including his ability to work because he stated he had trouble talking with people unless they were facing him and sometimes, he would not hear the doorbell or telephone ring. Later the examiner stated that the veterans DD214 reported that he was a security specialist from 12/1978 until 08/1984 the report of medical exam and history upon enlistment 12/1978 showed normal hearing in both ears. The reference audiogram from 04/1982 showed normal hearing in both ears. The examiner stated that normal hearing in both ears at separation and in a December 2012 audiology exam, and there was no significant change in hearing during active military service. Therefore, it was less likely than not that the Veteran’s hearing loss was due to noise incurred while in-service. In a March 2016 form 9, the Veteran stated that he believed that working on the flight line for 5 years while in service had something to do with his hearing, because that is all he did that could have hurt the hearing in his ears. See March 2016 Form 9, p.1. In July 2019, the Veteran was afforded another hearing loss and tinnitus VA examination. The examiner reviewed the claims file; considered the Veteran’s accounts and conducted an evaluation. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 35 40 LEFT 20 20 35 45 55 Speech recognition ability was 96 percent in the right ear and 96 percent in the left ear. The audiologist diagnosed sensorineural hearing loss in the right and left ear at 500-4000 Hz range. The Veteran reported exposure to firearms and flight line noise but indicated that he consistently used hearing protection. The examiner concluded that it was at less likely than not the Veteran’s hearing loss was related to military noise exposure. The examiner indicated that the Veteran’s military occupation (MOS) had a high probability of hazardous noise exposure but there was no evidence of a significant threshold shift from entrance to separation. At entrance and separation, the Veteran’s hearing was normal. The examiner also indicated that the Veteran did not show signs of hearing loss until after service. In December 2019, the Veteran was afforded another hearing loss and tinnitus VA examination. The examiner noted that the Veteran was a security specialist which had a moderate probability of hazardous noise exposure. However, the examiner indicated that the Veteran had normal hearing at entrance and separation. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 35 35 LEFT 15 20 35 50 55 Speech recognition ability was 92 percent in the right ear and 92 percent in the left ear. The audiologist diagnosed sensorineural hearing loss in the right and left ear at 500-4000 Hz range. The Veteran reported that his hearing loss did impact his ordinary conditions of daily life, including his ability to work because he stated he sometimes could not hear when people were speaking to him and when he turned his television up to loud, he would get complaints. The examiner concluded that it was less likely as not the Veteran’s hearing loss caused by military noise exposure including his duties on the flight line and the firing range. The examiner acknowledged moderate probability of hazardous noise exposure, but the examiner also noted that the entrance exam completed on 12/6/1978 and separation examination completed on 7/2/1984 both indicated normal hearing. The examiner noted no evidence of a significant threshold shift from entrance to separation. The examiner also found that it was less likely than not that the Veteran’s hearing loss was proximately due to or the result of his service-connected tinnitus, because the Veteran noticed his tinnitus in service but his hearing was normal bilaterally in-service, therefore a nexus could not be drawn between hearing loss and tinnitus. In addition, the examiner stated tinnitus could occur without hearing loss being present and tinnitus was less likely than not a symptom associated with the Veteran’s hearing loss. The examiner also found the Veteran’s claimed bilateral hearing loss was less likely than not aggravated beyond its natural progression by the Veteran’s service-connected tinnitus, because while tinnitus is a known symptom of hearing loss and can interfere with a person’s ability to hear, it does not cause hearing loss. The evidence indicates that the Veteran has been diagnosed with sensorineural hearing loss, as defined by 38 C.F.R. § 3.385 and the Veteran's in-service exposure to acoustic trauma is conceded based on his military experience and the nature of his in-service duties. The Board finds that service connection is not warranted, however, because the weight of the evidence is against a finding that the Veteran's hearing loss is caused by the in-service noise exposure, or that it was otherwise incurred in service. There is insufficient evidence suggesting that bilateral hearing loss onset within a year of the Veteran's separation from service. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. As to the Veteran's documented bilateral hearing loss disability, the Board finds the December 2019 VA examiner's opinion the most probative evidence of record. The examiner considered the Veteran's lay contentions and the evidence of record and concluded that that it was at least as likely as not the Veteran’s hearing loss was related to military noise exposure. The examiner indicated that the Veteran's military occupation had a moderate probability of hazardous noise exposure and that he received a small arms marksmanship ribbon. However, the examiner also noted that the entrance exam completed on 12/6/1978 and separation exam completed on 7/2/1984 both indicated normal hearing and there was no evidence of a significant threshold shift from entrance to separation. The Board acknowledges that service connection for hearing loss is not precluded where such hearing loss first met VA’s definition of disability after service. In fact, the Court stated that the Veteran could have normal findings at separation and service connection could still be established. The existence of a shift or demonstrable hearing loss during active service is not required for a positive nexus opinion. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Nevertheless, the VA examiner is competent and can form an opinion based on medical training, experience, and judgement. The Board finds the foregoing opinion the most probative evidence of record as to whether the Veteran's bilateral hearing loss disability was incurred in or is otherwise related to his active service. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as sensorineural hearing loss, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, neither hearing loss nor an organic disease of the nervous system was noted during service. Indeed, on multiple occasions following separation from service, the Veteran had an opportunity to report any hearing related issues, but hearing loss was not mentioned until a December 2012 VA treatment record. In addition, the Veteran has not reported a continuity of hearing problems from service during the course of his appeal. Therefore, the evidence is against a finding of continuity of symptomatology for the Veteran's hearing loss dating back to his service. In light of the normal audiograms in service and the Veteran’s explicit denial of hearing and ear problems during his discharge examination, the Veteran's report of a history of normal hearing acuity, and the absence of a specific point in time when the loss of hearing acuity was noted, the Board affords significantly greater probative weight to the medical evidence of record than the Veteran's lay assertions of an association between the current bilateral hearing loss disability and his active service, to include in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As for entitlement to service connection for bilateral hearing loss as secondary to service-connected tinnitus, it is already established that the Veteran has current bilateral tinnitus and is currently service-connected for tinnitus. 38 C.F.R. § 3.310(a). However, the competent medical evidence does not support a causal relationship between the present disability and the service-connected disability. As noted above, the December 2019 VA examiner found that it was less likely than not that the Veteran’s hearing loss was proximately due to or the result of his service-connected tinnitus, because the Veteran noticed his tinnitus in service but his hearing was normal bilaterally in-service, therefore a nexus could not be drawn between hearing loss and tinnitus. In addition, the examiner stated tinnitus could occur without hearing loss being present and tinnitus was less likely than not a symptom associated with the Veteran’s hearing loss. The examiner also found the Veteran’s claimed bilateral hearing loss was less likely than not aggravated beyond its natural progression by the Veteran’s service-connected tinnitus, because while tinnitus is a known symptom of hearing loss and can interfere with a person’s ability to hear, it does not cause hearing loss. The Board places the greatest weight of probative value on this opinion as it includes a full rationale and explains the medical principles at issue as they relate to the facts of the Veteran's case. Accordingly, the Board concludes that service connection for bilateral hearing loss as secondary to service-connected tinnitus, is not warranted. 38 C.F.R. § 3.310. The Board has considered the benefit-of-the-doubt rules; however, since a preponderance of the evidence is against the Veteran's claim for service connection, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.