Citation Nr: 21023304 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-12 804 DATE: April 20, 2021 ORDER Service connection for bilateral hearing loss disability is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran’s bilateral hearing loss disability manifested during service, manifested to a compensable degree within one year of separation from service, or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to February 1972. A hearing was held before the Board in August 2018. A transcript of the hearing is associated with the claims file. In a March 2021 letter, the Veteran was advised that the Veterans Law Judge (VLJ) who conducted the August 2018 hearing was no longer employed by the Board and he had the right to an additional hearing before a different VLJ. 38 U.S.C. § 7107(c), 38 C.F.R. § 20.707. The letter instructed if the Veteran did not respond within 30 days, the Board will assume the Veteran did not want another hearing and proceed with a decision on the record. VA did not receive a response. As such, the Board will proceed with a decision on the record. Service connection for bilateral hearing loss disability The Veteran contends his bilateral hearing loss is related to combat noise exposure, including machine gun and heavy ammunition fire, in the course of his duties driving an armored gun vehicle in Vietnam. See October 2013 NOD and August 2018 hearing testimony. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, to include sensorineural hearing loss, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Board recognizes the Veteran has a current bilateral hearing disability under 38 C.F.R. § 3.385. See January 2020 VA examination. The Board recognizes the Veteran engaged in combat and was exposed to in-service noise exposure. See March 2019 Board decision. Therefore, the question for the Board is whether the Veteran’s bilateral hearing disability manifested during service, manifested to a compensable degree within one year of separation from service, or is otherwise related to service. The preponderance of the evidence is against finding the Veteran’s bilateral hearing loss disability manifested during service, manifested to a compensable degree within one year of separation from service, or is otherwise related to service. The Veteran’s service treatment records (STRs) do not show hearing loss during service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (indicating that thresholds above 20 decibels are indicative of at least some degree of hearing loss). February 1971 STR noted a wire went into the Veteran’s right ear with bleeding. The examiner observed no perforation. March 1971 STR noted the clot was still on canal wall. The January 1972 separation examination made no mention of ear injury. Even if no hearing loss or auditory shifts are noted in STRs, the Court has held that 38 C.F.R. § 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service. Id. at 159; see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Following separation from service, the first evidence of hearing loss was an October 2011 VA treatment record. The Veteran reported hearing problems since Vietnam. He reported he was the driver of a truck with four guns and would get pain in his ears after the first three rounds. He reported sometimes after using several hundred rounds of ammunition, he could not hear for several days. He reported working on the railroad after the military, but always wearing hearing protection. At a November 2011 audiology consultation, the Veteran reported gradually decreasing bilateral hearing that he first noticed during Vietnam. He reported a history of military noise exposure without hearing protection and years on the railroad without hearing protection. He denied vocational noise exposure. Audiometric results revealed mild sensorineural hearing loss to the right ear and mild to moderate sensorineural hearing loss to the left ear. Word recognition testing was performed using the NU-6. In December 2011, the Veteran was prescribed bilateral hearing aids. A March 2013 VA examination opined the Veteran’s hearing loss disability was less likely than not related to military service. The clinician noted there was an incident during service where the right ear was scratched, but STR note there was no perforation. The Veteran’s 2011 evaluation showed the eardrum test was normal and hearing loss was less severe in the right ear than the left ear. Therefore, the clinician stated there were no aftereffects of the Veteran’s scratched ear during service. At an April 2018 Board hearing, the Veteran reported constant exposure to machine gun noise during the military without hearing protection. He reported after a few ambushes and some extended firing, his hearing got a little worse. The Veteran submit pictures to the record showing the proximity of machine guns to the driver in the type truck he drove during service. He reported noise exposure working for the railroad after service, but wore hearing protection. He stated he did not have a hearing test when hired at the railroad, but did have hearing tests with later railroad physicals. Of note, a March 2019 Board remand ordered the RO provide the Veteran an opportunity to identify or submit evidence regarding his employment with the railroad. An October 2020 VA letter requested the Veteran complete and sign releases for any private treatment records the Veteran wanted obtained on his behalf. VA did not receive any signed authorizations. A January 2020 VA examination for hearing loss performed audiological testing that showed bilateral hearing disability under 38 C.F.R. § 3.385. The Veteran reported hearing loss for “a long, long” time. He reported military noise exposure from proximity to machine guns in an armored gun truck. He reported that after an ambush in 1970, he noticed a decrease in his hearing for a couple of days, before his hearing improved. He stated no hearing protection was provided. Post-service, he reported working for the railroad as a locomotive engineer from 1969 to 2010. He reported no use of hearing protection until later in his career when it became available. The clinician opined the Veteran’s bilateral hearing loss was less likely as not caused by or a result of military service. The clinician’s rationale was: Noise exposure is conceded, but there is no evidence of noise injury, specifically there was no permanent shift in the Veteran’s pure tone thresholds from enlistment to separation. Without a shift in pure tone thresholds, there is no objective evidence to establish that an event or injury occurred in service. The audiogram is the gold standard for identifying such noise injuries. The Veteran reported temporary hearing loss in 1970 after an ambush. He stated that he noticed a decrease in his hearing for a couple days. Research studies have shown that hazardous noise exposure has an immediate effect on hearing and it is usually temporary at first. It does not have a delayed onset nor is it progressive or cumulative. Exposure to either impulse sounds or continuous exposure can cause a temporary threshold shift. Impulse sounds may damage the structure of the inner ear resulting in an immediate hearing loss. Continuous exposure to loud noise can also damage the structure of the hair cells resulting in hearing loss. If the hearing does not recover completely from a temporary threshold shift, a permanent hearing loss would exist. Since the damage is done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss. Normal hearing bilaterally was confirmed on a January 1972 pure tone audiogram confirming a recovered temporary threshold shift. There were no permanent effects of military noise exposure on this Veteran’s bilateral hearing sensitivity. Hearing loss does not happen after separation if it is from military noise, it is immediate; however, it was not present at separation. “Most scientific evidence indicates that previously noise-exposed ears are not more sensitive to future noise exposure and that hearing loss due to noise does not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise is discontinued.” This American College of Occupational and Environmental Medicine (ACOEM) statement was developed by the ACOEM Noise and Hearing Conservation Committee under the auspices of the Council on Scientific Affairs. It was peer-reviewed by the Committee and Council and approved by the ACOEM Board of Directors on October 27, 2002. ACOEM, Position paper Noise-induced Hearing Loss, 2002, p. 1. The Institute of Medicine (IOM) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. Based on the objective evidence (audiograms), there is no evidence on which to conclude that this Veteran’s current hearing loss was caused by or a result of the Veteran’s military service, including noise exposure. “There 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. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” Noise and Military Service, Humes, L., Loellenbeck, L., and Durch, J., Eds. IOM of the National Academies, National Academies Press, Washington, DC, 2006, p. 47. “A hallmark of noise-induced hearing loss is the appearance of a hearing loss for high-frequency sounds, with the worse hearing thresholds typically occurring at frequencies of 3000-6000 Hz.” Id. at p. 21. “Typically, the hearing loss abruptly reaches a maximum between 3000 and 6000 Hz, followed by a return toward normal hearing at still higher frequencies. This particular pattern of hearing loss is typically referred to as the 'noise-notch' audiogram. It is a clinical hallmark often used to distinguish noise-related high-frequency hearing loss from that associated with other etiologies.” Id. at p. 38. There is no noise notch on the separation pure tone audiogram. According to the NOISE MANUAL (Fifth Edition, edited by Berger et al.) and OSHA regulations, the degree of any noise-induced hearing loss is highly correlated with the intensity of the noise and the length of exposure time. This Veteran served in the U.S Army for approximately two and a half years. He also has over 40 years of occupational noise exposure as a Locomotive Engineer at Grand Trunk/Canadian National Railroad. He reported no use of hearing protection until later in his career when it became available. His exposure to hazardous noise in civilian life was far greater than his exposure to hazardous noise in the military. Therefore, the nexus with military service was far less than a 50/50 probability relationship compared to his exposure to hazardous noise in civilian life. The slope and degree of current hearing loss is not consistent with military acoustic trauma of over 47 years post-military service. The configuration of loss is more consistent with continuous, long-term noise exposure and presbycusis (age related hearing loss). The Board gives probative weight to the March 2013 VA medical opinion as to whether the Veteran’s bilateral hearing loss disability is related to the scratch of the Veteran’s right ear during service. The Board gives probative weight to the January 2020 VA examination as to whether the Veteran’s bilateral hearing loss disability manifested during service or is otherwise related to service. These opinions were based on an accurate medical history and provided a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes the January 2020 medical opinion relied in part on the 2006 IOM study that was scrutinized in McCray v. Wilkie, 31 Vet. App. 243, 258-59 (2019). While there are contradictory aspects to the IOM report, the court in McCray referenced “a medical text’s qualifying or contradictory aspects” as a factor to be considered in a non-exhaustive list that is relevant to the Board’s evaluation of the probative value and adequacy of a medical opinion. Id. at 257. The simple use of the IOM report does not automatically render the VA medical opinion inadequate. In this case, the VA examiner did not rely entirely on the IOM report in forming her opinion, but also discussed relevant facts of the Veteran’s history and other medical literature. Consequently, the Board finds the January 2020 VA examiner’s reference to the IOM study did not impact the probative value of the medical opinion. Consideration was given to the Veteran’s lay statements that his bilateral hearing loss is related to noise exposure during service. The Veteran is competent to report noticing hearing loss and noise conditions, but he is not competent to opine on the etiology of bilateral hearing loss disability, as that requires medical expertise outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, this lay evidence does not constitute competent evidence in the determination of the etiology of the Veteran’s bilateral hearing loss. Accordingly, as the preponderance of the evidence is against finding the Veteran’s bilateral hearing loss disability manifested during service, manifested to a compensable degree within one year of separation from service, or is otherwise related to service, service connection for bilateral hearing loss disability is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.