Citation Nr: 21021247 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-20 876 DATE: April 12, 2021 ORDER Entitlement to service connection for left ear hearing loss, to include as secondary to service-connected tinnitus, is denied. FINDINGS OF FACT 1. The Veteran’s current hearing loss disability is asymmetrical and affects only the left ear. 2. The Veteran was exposed to acoustic trauma in service. 3. Symptoms of left ear hearing loss were not chronic in service or continuing since service separation; and a left ear hearing loss disability did not manifest to a compensable degree within one-year after service. 4. The preponderance of the evidence is against finding that the Veteran’s left ear hearing loss is related to military noise exposure, and is more likely than not related to post-service noise exposures. 5. The Veteran’s left ear hearing loss disability was not proximately due to, or aggravated by his service-connected tinnitus. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss, to include as secondary to service-connected tinnitus, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from July 1972 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for left ear hearing loss. This case was previously remanded by the Board in January 2019, where the issue on appeal was remanded for a VA examination and medical opinion. In July 2020, the Board again remanded the claim for an addendum medical opinion and to attempt to obtain private treatment and employment records pertaining to the Veteran’s hearing loss. The Veteran was sent a letter requesting he submit information regarding private treatment and employment information on July 31, 2021; however, the Veteran did not respond. On review, the Board finds substantial compliance with its July 2020 remand directives.  See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection - Pertinent Laws and Regulations  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).   Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   Sensorineural hearing loss is considered by VA to be an “organic disease of the nervous system,” and is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  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.  Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  For the showing of “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.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).  A layperson is competent to report the onset and continuity of his or her current symptomatology, to include reduced hearing acuity.  See Layno, 6 Vet. App. 469- 470 (a Veteran is competent to report on that of which he or she has personal knowledge).  In addition, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).   When all the evidence is assembled, 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 a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   Left Ear Hearing Loss The Veteran contends that his left ear hearing loss is related to service, specifically to hazardous noise exposure associated with his military occupational specialty (MOS). Alternatively, he contends his left ear hearing loss is secondary to his service-connected tinnitus. See December 2018 Appellate Brief; March 2021 Appellate Brief. For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As an initial matter, the Veteran is diagnosed with left ear sensorineural hearing loss for VA purposes. See e.g. February 2020 VA Examination and Report. Therefore, the first element of service connection claim is met. Moreover, the Board concedes that the Veteran was exposed to hazardous noise in service, as his DD Form 214 indicates he was a boiler room technician and he credibly reported that he was exposed to 45 and 50 caliber gun fire while in service. The claim thus hinges on whether there is a nexus between his current left ear disability and service or his service-connected tinnitus. For the reasons outlined below, the Board finds service connection is not warranted. Turning to the evidence, the May 1975 service separation examination found that the Veteran’s hearing was measured as being 15/15 on whispered voice testing. Although the whisper voice test is an alternative means of testing hearing, the whispered voice test cannot measure audiometric threshold shifts, can neither establish nor rule out the presence of a hearing loss disability as defined in 38 C.F.R. § 3.385, and is not capable of capturing hearing loss that may have begun in service following acoustic trauma. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992). For these reasons, an absence of hearing loss shown by whispered voice testing cannot be relied upon in denying a claim for service connection for hearing loss, or as evidence of no hearing loss during service. Based on the above, the Board finds that there was no probative audiological evaluation performed at service separation. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (interpreting that 38 C.F.R. § 3.385 does “not serve as a bar to service connection” where there is an absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria). In the accompanying separation report of medical history, the Veteran denied hearing loss. See May 1975 Report of Medical History. In October 2014, the Veteran was provided a VA audiology compensation examination in conjunction with his claim. The Veteran reported he was exposed to noise in service, including 45 and 50 caliber weapons and noise from the machinery in the boiler room on the ship, where he was provided hearing protection but the apparatus would fall out of his ears in the boiler room due to the sweat. He also recounted an instance on the firing range where his hearing protection was not in properly and he had continued ringing in his ears after that time. The Veteran also summarized his post-service employment history, including working at a cannery plant for 16 years where he was provided hearing protection and had annual hearing examinations. It was during this employment where he was told he had left ear hearing loss and he stated that he was exposed to noise only on the left side at the cannery plant. The examiner, an audiologist, opined that his left ear hearing loss was less likely than not due to the military noise exposure as the Veteran worked at the cannery plant for 16 years with the machinery on his left side, in addition to his other occupations with noise exposure after service and noisy hobbies without ear protection. See October 2014 VA Audiology Examination and Report. In February 2020, the Veteran was afforded another VA audiology compensation examination and the examiner, an audiologist, found that the Veteran’s left ear hearing loss was less likely than not related to noise in service and more likely due to 25 years working in a printing plant and 16 years in a cannery, as well as recreational use of guns and power tools. The examiner referenced evidence from several studies that conclude that the most pronounced effects of noise-induced hearing loss occur immediately following exposure and recovery to stable thresholds occurs within around 30 days and anatomical and physiological evidence suggested that delayed post-exposure noise induced hearing loss was not likely, and therefore the hearing loss was more likely due to his post-service hearing exposure. The examiner further opined that his left ear hearing loss is less likely due to his service-connected tinnitus, as the disabilities are comorbidities, and neither is causative of the other. See February 2020 VA Audiology Examination and Report. In October 2020, another VA audiology examination was provided to the Veteran. The Veteran reported multiple ear infections during active duty. The examiner opined that, given his MOS and no report of hearing loss up to 2014, including after medical treatments or events (stroke and left side neck injury and surgery), which are both remarkable for possible side effects of hearing loss, and that the nature of hearing loss was asymmetrical and only observed in one ear since 2014, while noting that acoustic trauma is not selective for hearing loss, hearing loss was less likely than not caused by military noise exposure and/or events. The examiner also stated that tinnitus did not cause or aggravate hearing loss but was a sign of hearing loss. See October 2020 VA Audiology Examination and Report. Upon careful review of all the evidence, both lay and medical, the Board finds that service connection for hearing loss on a presumptive basis is not warranted. The Veteran has not stated, and the Board has not found, evidence of chronic symptoms of left ear hearing loss in service, continuing symptoms of left ear hearing loss since separation, or a left ear hearing loss disability having manifested to a compensable degree within 1 year of service. The first evidence of any hearing difficulty is not shown until April 2014, when the Veteran filed his claim for VA compensation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). This almost 40-year gap between service separation and first symptoms is but one factor that is against the claim. For these reasons, the criteria for presumptive service connection on any basis have not been met. The Board also finds that there is no competent evidence of a nexus between the Veteran’s currently diagnosed disability and his active service or his service-connected tinnitus.  The Board finds the October 2014, February 2020, and October 2020 VA medical opinions highly probative in this case. All of the opinions were authored by VA audiologists who reviewed the Veteran’s claims file and examined the Veteran. In arriving at the opinion that the Veteran’s left ear hearing loss was less likely than not related to hazardous noise exposure during service, the examiners considered the Veteran’s lay assertions in addition to the medical evidence. The October 2014 and October 2020 examiners explained that the Veteran’s asymmetrical hearing loss was evidence it was related to post-service employment rather than in service, as he spent 16 years with the machinery on his left side. In addition, the February 2020 VA examiner indicated the current science indicates that delayed onset of hearing loss is not likely. The Board recognizes that the Veteran takes issue with the examiner’s opinion that the onset of his hearing loss took place after service at the cannery plant job. See March 2021 Appellate Brief, page 2. However, the Board finds that this argument is without merit, as the representative incorrectly recited the examiner’s opinion. The examiner attributed the Veteran’s asymmetrical hearing loss, in part, to noise exposure at the cannery plant because the machinery used was placed on the left side of the Veteran for 16 years. Moreover, not only did the examiner attribute the Veteran’s hearing loss to the cannery plant noise exposure, but also to noise exposure at a printing plant for 25 years and post-service recreational use of guns and power tools; the inference being that the decades of post-service noise exposure have had more impact on his hearing than the three years of military noise exposure. The Board concludes that the opinions of the VA audiologists are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no other medical opinions of record. Additionally, the February 2020 VA examiner stated that the hearing loss and tinnitus are comorbidities and opined that tinnitus did not cause his hearing loss. The October 2020 VA examiner also opined that the Veteran’s tinnitus did not cause or aggravate his hearing loss. The opinions with regard to secondary service connection are also highly probative. There is no medical opinion of record asserting his hearing loss is caused or aggravated by his tinnitus. As such, service connection under 38 C.F.R. § 3.310 is not warranted. The Board considered the Veteran’s statement purporting to relate his currently diagnosed hearing loss to active duty and to his tinnitus. Although the Veteran is competent to report observable symptoms of hearing loss, he is not competent to offer an opinion as to etiology, as the etiology of hearing loss relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”).  In this regard, the Veteran’s statements are not competent and are outweighed by the competent medical evidence in this case. (Continued on the next page)   For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for left ear hearing loss, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.