Citation Nr: 21022937 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-09 535 DATE: April 19, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Service connection for a back disorder is remanded. FINDING OF FACT Hearing loss was not shown in service; is not causally or etiologically related to service; and did not manifest to a compensable degree within one year of separation. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1972 to June 1975, including foreign service in Belgium. Procedurally, the Veteran withdrew his hearing request in a June 2016 written statement. See 38 C.F.R. § 20.704(d). These appeals were previously remanded by the Board in February 2018 and May 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2015, the Veteran submitted a claim seeking service connection for bowel and bladder incontinence. Although other August 2015 claims were adjudicated by the Agency of Original Jurisdiction (AOJ), these matters remain pending. Thus, the Board does not have jurisdiction over these claims, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Service Connection The Veteran is currently pursuing direct service connection for bilateral hearing loss. The Board will limit its analysis accordingly. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Additionally, presumptive service connection is available for those diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. In assessing the first element of direct service connection, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these 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. In this respect, the Veteran underwent VA audiological examinations in June 2012, October 2019, and September 2020. Hearing loss for VA purposes was not demonstrated in June 2012, and the September 2020 examiner reported “test inconsistencies” in the Veteran’s responses which prevented a diagnosis from being offered. However, the October 2019 VA examiner recorded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 45 45 LEFT 25 25 25 40 55 Accompanying speech discrimination scores were reported as 98 percent in both ears. At that time, the examiner explicitly reported that the puretone test results were valid for rating purposes, and the use of speech discrimination scores were appropriate for this Veteran. Given the credibility of these results, it is found that the Veteran demonstrated bilateral hearing loss for VA purposes during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Such a finding is supported by VA treatment records, which repeatedly note a history of bilateral hearing loss in the Veteran. Thus, the first element of direct service connection has been met. As to the second element, the Veteran served as a military policeman during service, which has a moderate probability of in-service noise exposure. See DD Form 214. During his VA examinations, the Veteran also offered competent and credible testimony of in-service noise exposure due to weapons training and working near the flight line without hearing protection. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). The AOJ seemingly conceded such exposure in November 2012, when service connection was awarded for tinnitus on this basis. The Board finds no good cause to offer a conflicting finding at this time, such that the second element of direct service connection is also met. However, the evidence weighs against a finding that the Veteran’s bilateral hearing loss is etiologically related to his military service. There are multiple negative VA opinions for consideration on this point. First, the June 2012 examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or the result of military noise exposure. Here, the examiner noted that the Veteran both entered and exited service with normal hearing sensitivity. There is no evidence of any significant threshold shifts during service. Thus, a negative nexus opinion was asserted based on the presence of normal hearing upon service exit; the absence of documented significant threshold shifts during service; and the absence of complaints, treatment, or diagnoses for hearing loss within a “reasonable time” post-service. Moreover, medical literature does not support the contention of a delayed onset of hearing loss related to prior noise exposure. An etiological opinion was not provided by the October 2019 examiner. Additionally, the September 2020 examiner declined to diagnose the Veteran with a current disability due to unreliable test results. However, the latter examiner also reported that, if a diagnosis were confirmed, it would be less likely than not that the Veteran’s hearing loss was caused by or the result of military service. Here, the examiner acknowledged the Veteran’s military occupational specialty (MOS). However, all in-service audiograms revealed normal hearing bilaterally, including the separation examination. Further, there were multiple audiograms conducted post-service which revealed normal hearing bilaterally. A 2006 study concludes that the delayed onset of hearing loss following prior noise exposure is “extremely unlikely.” Here, the claims file contains no documentation of a permanent positive significant threshold shift in either ear during service. Instead, the Veteran’s advanced age (71) made presbycusis a factor. Accordingly, a nexus was not asserted at that time. The claims file contains no other competent nexus opinions for consideration. Rather, the June 2012 and September 2020 opinions are probative evidence against the claim. Importantly, these opinions are definitive and supported by detailed rationales which directly contemplate the Veteran’s military and medical histories, to include his in-service noise exposure and all contemporaneous and subsequent audiograms. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). Both examiners also noted that current medical literature does not generally support the finding of delayed onset, as argued in this case. In contrast, the Veteran contends that his bilateral hearing loss is related to his service. However, he lacks the requisite training and expertise to offer a competent etiological opinion. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, greater probative value is afforded to the medical evidence of record, which does not support the finding of a nexus in this case. Thus, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable, and the appeal is thus denied on a direct basis. Briefly, the Board has also considered the applicability of presumptive service connection to this appeal due to chronicity of symptoms. See 38 C.F.R. § 3.307. However, the Veteran has not reported that his hearing loss onset during service and has continued since that time, such that the appeal also fails on this basis. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeal. Historically, VA nexus opinions related to the back appeal were obtained in April 2013, October 2019, and October 2020. Although the two most recent evaluations document the Veteran’s contention that his current back disorder is related to an in-service motor vehicle accident or injuries caused by lifting heavy mail bags, these theories of entitlement are not directly addressed in the provided nexus opinions. As such, a remand is required for an adequate opinion to be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: Obtain an opinion addressing the questions below.  If the reviewing examiner determines that the opinion requested may not be offered without first examining the Veteran, then consider whether a telehealth interview may be appropriate.  Schedule an in-person examination only if deemed necessary to answer the questions below.          The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.     (1) Identify all current back disorders demonstrated by the Veteran. If a diagnosis of arthritis is rendered, the examiner must explicitly identify the onset of this disorder. (2) For each diagnosed disorder, is it at least as likely as not (50 percent probability or more) that it began during a period of active duty service, was caused by service, or is otherwise related to service? Here, the examiner must explicitly address the Veteran’s assertion that his current disorders are related to in-service handling of heavy mail bags, or a 1974 motor vehicle accident (MVA). In formulating the opinion, the examiner is advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.       [CONTINUED ON NEXT PAGE] A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.