Citation Nr: 21021296 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 19-31 325 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss did not manifest during service or within one year of separation and is not shown to be causally or etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1959 until November 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by a Department of Veterans Affairs (VA) regional office (RO). This claim was previously remanded by the Board in February 2020 to obtain an addendum VA examination to determine the nature and etiology of the Veterans bilateral hearing loss. Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing (1) a present disability; (2) an 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss due to military service. The Veteran’s MOS in-service was as an aircraft crash fire rescue member. In-service exposure to hazardous noise this thus conceded. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran’s in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). June 1963 service treatment records show that the Veteran reported “ear trouble” as his ears felt “plugged or like something is in it;” his ear canals were clean “but slightly infected.” The examiner diagnosed the episode as probable “early otitsherdia” or eustachinitis. A June 1963 follow-up showed that the Veteran stated that his ears were “O.K.” but seemed to have decreased hearing acuity. In an October 2018 lay statement, the Veteran explained that he was exposed to significant hazardous noise as an aviation crash and rescue crew member with minimal noise exposure after separation from the military. The Board notes that the Board has already conceded the second Shedden element, in-service noise exposure. The July 2018 VA examination and August 2018 addendum opinion were already deemed inadequate by the February 2020 Board decision for failing to consider the service treatment records indicating decreased hearing, possible eustachinitis, and “ear trouble,” as well as, the Veteran’s lay assertions that he experienced significant noise exposure during service, but minimal exposure thereafter. The February 2020 Board decision also stated that these opinions’ reliance on an Institute of Medicine (IOM) report addressing military noise exposure and hearing loss was “misplaced” as the study was inconclusive. See McCray v. Wilkie, 31 Vet. App. 243 (2019). At this juncture, the Board acknowledges that in an August 2020 correspondence the Veteran contended that his July 2018 VA examination and August 2018 addendum opinion were improperly issued. However, since these opinions are offered no probative weight, any error associated with such is moot. As a result of the February 2020 remand, the Veteran participated in a February 2020 VA examination. Therein, the VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to service as the Veteran’s in-service audiograms revealed hearing acuity within normal limits, his service treatment records were silent for complaints of hearing loss, and because the IOM concluded that there is no sufficient basis for the existence of delayed onset hearing loss. The Board, however, finds the February 2020 VA examination inadequate as it is based on an incorrect factual basis. As referenced in the February 2020 Board remand, the Veteran’s June 1963 service treatment records show complaints for “ear trouble” and decreased hearing, and received possible diagnoses of “early otitsherdia” or eustachinitis. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In a July 2020 addendum medical opinion, the VA examiner again opined that the Veteran’s bilateral hearing loss was less likely related to service. The examiner acknowledged that the Veteran experienced in-service hazardous noise, but noted that the Veteran did not experience a noise injury as his in-service audiograms showed that he had hearing within normal limits with very sensitive thresholds making a significant threshold shift from time of enlistment unlikely. Citing to the IOM study, the examiner differentiated between those simply exposed to hazardous noise, and those who experience a noise injury. Based on this important distinction, the VA examiner concluded that, “if the evidence shows there has been no significant threshold shift beyond normal measurement variability while in service (no hearing injury while in service) any hearing loss occurring following service is less likely as not caused by or a result of noise exposure while in service . . . In the absence of objective audiometric evidence of noise injury while in service, an affirmative opinion that the Veteran suffered some latent undiagnosed noise injury is utter speculation and directly contradicts the objective evidence of record.” The examiner also noted that audio evaluations from 2018 to 2020 showed that the Veteran has type C tympanometry results which is consistent with Eustachian tube dysfunction, however, his pure tone audiometry indicates that he has sensorineural hearing loss for both ears, “with no evidence of a conductive component.” The examiner concluded that if the Veteran’s current hearing loss is related to the in-service eustachinitis, the hearing loss would have a conductive component or mixed hearing loss. In other words, because there is no such evidence of either, the Veteran’s current hearing loss is not related to his in-service treatment for eustachinitis. In the August 2020 brief, the Veteran’s representative argued that the Veteran experienced delayed onset of his hearing loss. The brief cited a 2015 article published in the Journal of Neuroscience which showed that auditory damage can “accelerate hearing loss in aging.” Based on the above, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s bilateral hearing loss is etiologically related to service. Initially, the Board finds that presumptive service connection is not warranted as there is no evidence to show that the Veteran was diagnosed or had onset of hearing loss either during service or within the first year after separation from service. Per a July 2014 VA treatment record, the Veteran first purchased his hearing aids two to three years prior. In addition, in a July 2016 record the Veteran reported that he noticed increased hearing loss approximately ten years prior. The Board finds the July 2020 addendum VA medical opinion probative in this case. This opinion considered all the evidence of record, to include the Veteran’s service treatment records and lay assertion that his bilateral hearing loss was caused by noise exposure in service, and opined that it was not. The Board finds that these opinions constitute probative evidence on the medical nexus question, based on a review of the Veteran’s documented medical history, assertions, and physical examination. The opinions provided clear rationale based on an accurate discussion of the evidence of record, to include consideration of in-service and post-service noise exposure, as well as the Veteran’s lay opinions regarding the etiology of his hearing loss. Prejean v. West, 13 Vet. App. 444 (2000). The Board finds particularly persuasive the July 2020 rationale that if the Veteran’s current hearing loss is related to the eustachinitis in-service the hearing loss would have a conductive component or mixed hearing loss, to which he does not have. Furthermore, although the Veteran’s representative mentioned in the August 2020 brief a 2015 article published in the Journal of Neuroscience suggesting that auditory damage can “accelerate hearing loss in aging,” the full text of this article was never submitted to the Board for review. Furthermore, the summation of the article in the appellate brief indicates that the article notes that delayed onset hearing loss is possible in some case. Further, there is no evidence that the article is specific to the Veteran and the etiology of his current hearing loss. Wallin v. West, 11 Vet. App. 509, 514 (1998); see Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (stating that an excerpt from a generic medical text that does not apply medical principles regarding causation or etiology to the facts of the individual veteran’s case generally will not provide sufficient evidence, standing alone, to serve as the basis for an award of service connection). As such, the excerpt is entitled to no probative weight. The Veteran can testify to that which he is competent to observe, such as symptoms denoting loss of hearing, but he is not competent to provide a medical diagnosis of hearing loss or to relate any symptoms of hearing loss to noise exposure in service. The Board acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). While it is the Veteran’s opinion that his exposure to hazardous noise in the military “far outweighs the miniscule exposure” he had as a civilian after military service, the Veteran does not have the medical training and knowledge necessary to provide such an opinion. Jandreau, 492 F.3d 1372. As such, the Veteran’s assertions that his hearing loss is causally related to his period of service are entitled to no probative weight. In sum, the Board finds the July 2020 VA examination more probative and persuasive than the Veteran’s lay contentions and August 2020 brief. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that bilateral hearing loss is related to active service. As the preponderance of the evidence is against the claim, it must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.