Citation Nr: 21021550 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-22 993 DATE: April 13, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The evidence does not show that the Veteran’s bilateral hearing loss occurred during, was diagnosed within a year of service, or is otherwise etiologically related to his service. CONCLUSION OF LAW The criteria for bilateral hearing loss have not been met. 38 U.S.C.§§ 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from February 1978 to February 1982. The Veteran is seeking service connection for bilateral hearing loss, which he believes resulted from noise exposure that he experienced in the military. This issue was most recently before the Board in June 2020. The Board remanded the issue for further development, to include obtaining another nexus opinion. Such development has since been completed and the Board is satisfied that there has been substantial compliance with the remand directives. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran is seeking service connection for bilateral hearing loss, which he believes, resulted from noise exposure that he experienced in the military as a cannon crewman. The Veteran reported that after years of working as a cannon crewman, his hearing had deteriorated, and the deterioration was most notable during the daily conversation with family, friends and other individuals in which he had to frequently ask them to repeat themselves because he was unable to hear them. See Notice of Disagreement dated December 2014. In his substantive appeal to the Board (Form 9), the Veteran stated that he had been having problems with his hearing since his service as an artilleryman in the Army. Service personnel records show that the Veteran’s Military Occupational Specialty (MOS) was a cannon crewman. A January 2017 rating decision granted service connection for tinnitus. As such, military noise exposure is conceded. However, military noise exposure alone is not considered to be a disability; rather, it must be shown that the military noise exposure caused a hearing loss disability for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service treatment records (STRs) contain audiometric testing at the December 1977 enlistment physical, showing the following results: HERTZ 500 1000 2000 3000 4000 Right 5 0 0 0 5 Left 10 10 10 15 10 STRs also contain an audiogram, completed in August 1981, which provided the following results: HERTZ 500 1000 2000 3000 4000 Right 10 5 0 5 5 Left 25 20 15 20 15 STRs also indicate that the Veteran was issued hearing protection in service. A VA examination in September 2014 diagnosed the Veteran with hearing loss for VA purposes. The results of the audiogram were as follows: HERTZ 500 1000 2000 3000 4000 Maryland CNC Right 25 35 35 45 45 96% Left 25 35 40 50 50 94% The examiner opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) related to his noise exposure in service because his records did not show hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. The VA examiner also noted that the Veteran had been exposed to occupational noise since military service, including to plumbing, jackhammers, and lawn equipment without hearing protection. VA examination in January 2017 showed following audiogram results: HERTZ 500 1000 2000 3000 4000 Maryland CNC Right 30 40 40 50 55 94% Left 30 40 45 55 60 94% The January 2017 VA examiner opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) related to noise exposure in service because the records indicated normal hearing at separation. The Veteran was provided a VA audiological examination in July 2019, which showed the following results: HERTZ 500 1000 2000 3000 4000 Maryland CNC Right 20 25 25 40 45 94% Left 20 25 40 50 50 94% The July 2019 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not (less than 50 percent probability) caused by or a result of his military noise exposure, because Veteran’s hearing thresholds in both ears were within normal limits at both entrance and separation. The examiner relied on a 2005 Institute of Medicine Study, Noise and Military Service: Implications for Hearing Loss and Tinnitus, which states that “[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. . . . based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” In July 2020, pursuant to the June 2020 Board remand, a VA examiner provided an addendum opinion that Veteran’s hearing loss was less likely than not (less than 50 percent probability) related to noise exposure in service. The examiner’s opinion was issued after review of the Veteran’s entire claim’s file. The examiner explained that STRs showed normal hearing with no significant shift in hearing while in service. The Institute of Medicine Report on noise exposure in the military concluded that based on current knowledge, noise-induced hearing loss occurs immediately; there was no scientific support for delayed onset noise-induced hearing loss weeks, months, or years after the exposure event. Given that the Veteran’s hearing was within normal limits while in the service, his current bilateral hearing loss was less likely as not caused by or a result of acoustic trauma sustained in service. In addition, the examiner pointed out that the Veteran worked with lawn equipment for many years without any ear protection, and according to Merck Manual 17th Edition, Section 7, nearly everyone would lose some hearing if being exposed to sufficiently intense noise for an adequate time, and any noise over 85 dB was damaging. VA treatment records show that in June 2010, the Veteran requested an evaluation for fear that he was losing his hearing. Subsequently, in September 2010, the Veteran presented for an Audiology Consult at which he reported that he just wanted to get his hearing checked and that he did not have any hearing complaints. He also denied any trouble hearing on the telephone at that time. The hearing test done in September 2010 indicated that the Veteran’s bilateral hearing was within normal limits except for mild sensorineural loss at 3000 and 6000 Hz in the right ear and mild sensorineural loss at 3000 and 8000 Hz in the left ear. VA treatment records prior to 2010 showed that the Veteran repeatedly denied any hearing difficulty or changes. The Board finds that the July 2020 VA opinion was issued after the examiner reviewed the whole claim’s file and conducted medical research. The examiner considered not only the noise exposure and the Veteran’s hearing test results during service, but also his noise exposure and s hearing acuity change after service. The opinion is consistent with the evidence of the records and has not been contradicted or undermined by another medical opinion. As such, it will be given great probative value. While the Veteran contends that he had hearing loss since service due to working as a cannon crewman in the service, he was not concerned about his hearing until 2010, which is approximately 28 years after he separated from his service. VA treatment records showed that he repeatedly denied hearing problems or hearing changes in 2002, 2007 and 2008. Even at his hearing evaluation in September 2010, he did not raise any hearing complains and reported that he had no trouble hearing on the phone. Accordingly, the Board finds that the preponderance of the evidence weighs against the finding that the Veteran’s hearing loss occurred during or was diagnosed within a year of service or was a result of military noise exposure. Service connection for bilateral hearing loss is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jennifer M. Narvaez, 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.