Citation Nr: 21021414 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-12 483 DATE: April 12, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The weight of the evidence is against finding that bilateral hearing loss manifested during active service or within a year of separation from service, or that it is otherwise the result of a disease or injury during active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1965 to October 1967. The appeal comes to the Board of Veterans’ Appeals (Board) from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in October 2016. This matter was remanded in April 2018. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 (Fed. Cir. 2004); 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. For veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Hearing loss is considered to be an organic disease of the nervous system. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995 (characterizing high frequency sensorineural hearing loss as an organic disease of the nervous system). Moreover, for chronic diseases under 3.309(a), an award of service connection is permissible based solely on continuity of symptomatology. Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The Veteran asserts that his hearing loss is due to active service. His military occupational specialty (MOS) was a Field Artillery Cannoneer (FABtryMan) in the United States Marine Corps. He had 1 year, 11 months, and 29 days active service in the Republic of Vietnam. 10/24/1967 DD 214 Certified Original –Certificate of Release or Discharge From Active Duty. Based on the facts and circumstances of the Veteran’s service, the Board finds that the evidence of record establishes that he had noise exposure during his active service consistent with the circumstances of such service. Hearing loss is shown in both ears per an August 2011 audiological evaluation and subsequent audiological evaluations, and, thus, the question for the Board is whether the Veteran has hearing loss that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. Service treatment records do not reflect objective findings of hearing loss. The October 1967 Report of Medical Examination conducted for separation purposes reflects normal hearing on audiometric testing. 11/23/2010 STR-Medical at 2; see Hensley v. Brown, 5 Vet. App. 159 (1993). In September 2010, the Veteran initially claimed service connection for bilateral hearing loss. The Board concludes that, while he currently has a diagnosis of hearing loss, which is a chronic disease under 38 C.F.R. § 3.309(a), such did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In August 2011, the Veteran underwent a VA examination wherein the examiner diagnosed bilateral sensorineural hearing loss. The examiner proffered a negative etiological opinion, stating that the Veteran’s exit examination revealed normal hearing bilaterally, with no significant threshold shifts for the worse, and that his hearing was actually better at exit than at entrance, though both tests revealed hearing within normal limits. The Veteran reported a positive history of noise exposure from occupational and recreational sources (auto mechanic, hunting, target shooting) with hearing protection only worn at times, not for all exposure. He also reported being hospitalized in 1996 at which time he received an “overdose of gentamicin,” resulting in poor equilibrium. The examiner explained that Gentamicin is a known ototoxic medication and most likely contributed to today’s loss, along with post-separation noise exposure and aging. While the Board acknowledges the negative etiological opinion, such opinion is entitled to limited probative weight as the examination report does not reflect that consideration was given to the Veteran’s lay contentions regarding his in-service noise exposure. The August 2011 examiner noted the Veteran’s statement that he was tested as late as 2000 and was hold that “his hearing loss was mild and did not require amplification at the time.” In March 2019, VA sent a letter to the Veteran requesting that he complete a VA Form 21-4142 pertaining to the medical providers from 1996 and 2000; the Veteran did not respond. The Board notes that while VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board will proceed with an analysis based on the current evidence of record, to include VA treatment records, examination reports, and lay assertions of the Veteran. In January 2015, the Veteran underwent a private audiological evaluation. The Veteran described his in-service noise exposure and reported not wearing hearing protection. He reported that his hearing loss had gotten progressively worse since separation from service. The examiner stated that the Veteran has a significant history of hazardous noise exposure during service and his military occupational specialty carries a high probability of exposure to noise in service. The examiner explained that the audiometric configurations of his hearing loss bilaterally were seen in noise trauma induced damage, more aggressive than the normal aging process. However, the examiner noted that the Veteran’s audiometric test results from enlistment and separation examinations in service showed that his hearing sensitivities were within normal limits in service, which has made his service-connected claim difficult. The examiner stated that it would be helpful if the Veteran could demonstrate evidence that he was seeking medical help for his tinnitus and hearing loss soon after his separation from service. 10/05/2016 VA 21-4138 Statement in Support of Claim at 2. In June 2019, the Veteran underwent a C&P examination wherein the examiner proffered a negative etiological opinion. The examiner stated that there is an enlistment audiogram dated in September 1965 showing normal hearing. He went through infantry training during his time in the service and was exposed to shooting, explosives, and artillery. There is a separation audiogram dated in October 1967 which also shows normal hearing and no evidence of a shift in hearing during his service. After his time in the service, he worked in manufacturing and participated in recreational hunting and shooting. Therefore, his hearing loss is less likely than not due to military noise exposure. The Board has given consideration to the lay evidence from the Veteran pertaining to his hearing loss, and, as detailed, concedes his in-service noise exposure. The Veteran, however, does not have the requisite medical expertise to find that his hearing loss is due to service. His opinion in this regard is not competent, given the complexity of the medical question involved. In light of the assertions of in-service exposure, conceded by VA, a medical opinion was sought, which was negative. Moreover, while the January 2015 examiner did not specifically provide a negative etiological opinion, the examiner was unable to provide a positive etiological opinion based on the evidence of record, noting that it would be helpful if the Veteran could demonstrate evidence that he was seeking medical help for hearing loss soon after his separation from service. Such medical evidence was not produced by the Veteran. The medical evidence is deemed to be the only probative evidence regarding etiology. The issue is medically complex, as it requires diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While hearing loss is a chronic disease subject to special provisions, there is no evidence of manifestation of this condition within one year of active service and the record does not establish continuity of symptomatology. Therefore, in this case service connection cannot be established through the chronic disease presumption or lay statements of continuity of symptomatology. See Walker, 708 F.3d at 1331; 38 C.F.R. §§ 3.307, 3.309. The Board acknowledges the treatise evidence submitted by the Veteran pertaining to cochlear nerve degeneration after “temporary” noise-induced hearing loss. The Veteran nor his representative have presented any medical opinion evidence addressing the question of a relationship between the Veteran’s hearing loss and service, but a further opinion was sought. McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006); see 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). As detailed hereinabove, the VA opinion obtained is negative with regard to a relationship between his hearing loss and service. While medical treatise evidence can, in some circumstances, constitute competent medical evidence (see 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses), both Federal regulation and case law preclude granting service connection predicated on a result of speculation or mere possibility. 38 C.F.R. § 3.102; see Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (stating that a medical treatise submitted by an appellant that only raises the possibility that there may be some relationship between sickle cell anemia and the veteran’s fatal coronary artery disease does not show a direct causal relationship between the two disorders such as to entitle the appellant to service connection for the cause of the veteran’s death). The Court has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated medical opinion. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (stating that medical article or treatise evidence, standing alone, may be sufficient if it discusses “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based on objective facts rather than unsubstantiated lay medical opinion”). The Board notes that this treatise evidence was not combined with or accompanied by competent medical evidence specific to the facts and medical history relevant to this Veteran. Thus, due to the lack of relevant medical history related to the Veteran, the Board places little to no weight on the treatise evidence as it related to the nexus element. As such, the Board finds that the general opinion is outweighed by the negative medical opinion of record as it was based on facts pertinent to the matter at hand. The June 2019 examiner provided a negative etiological opinion, which was supported by a thorough analysis in consideration of the lay evidence and objective evidence of record, to include the service treatment records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board assigns probative value to this opinion as it was based on review of the entire evidence of record. As the probative evidence is against the claim, reasonable doubt does not arise, and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.