Citation Nr: 21023602 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-06 396 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT 1. A right ear hearing loss disability was noted on induction and is not shown to have increased in severity during (or as a result of) the Veteran’s active duty service. 2. A left ear hearing loss disability was not manifested during the Veteran’s service; left ear sensorineural hearing loss (SNHL) disability was not manifested to a compensable degree within one year following her discharge from service; and such disability is not shown to be etiologically related to her service. CONCLUSION OF LAW Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1966 to January 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a January 2010 Department of Veterans Affairs (VA) rating decision. In August 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. In November 2019, this matter was remanded for additional development. At the outset, the Board finds there has been substantial compliance with the November 2019 Board remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). A review of the November 2020 opinion found it adequate for rating purposes, which will be discussed further below. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include SNHL as an organic disease of the nervous system) may be presumed to be service-connected if manifested to a compensable degree within a specified period of time following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When a claimed disability is not noted upon entry into service, the Veteran is presumed to have been in sound condition with respect to such disability on entry in service. Such presumption is rebuttable only by clear and unmistakable evidence that (1) the condition preexisted service and (2) if rebutted, that it was not aggravated by such service (did not increase in severity during service, or that any increase in severity during service was due to natural progression). 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.306. For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On August 1965 service entrance, a left ear hearing defect was noted. Audiometry showed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 30 35 30 XX 45 Left 15 15 15 XX 15 The Veteran’s service treatment records (STRs) show that she was seen multiple times for complaints of plugged ears and impacted cerumen, and for irrigation of both ears. See February 1966, June 1966, November 1967, and February 1968 STRs. In November 1967, she reported intermittent hearing difficulty for the past 3 weeks. In May 1968, cerumen removal was noted. On January 1969 service separation examination, a hearing loss disability was not noted. Audiometry showed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 15 15 5 XX 5 Left 10 5 0 XX 15 A February 1, 2008 VA treatment record notes complaints of a gradual decline in her hearing over the last 4 to 5 years. Moderate to moderately severe mixed bilateral hearing loss was diagnosed and acoustic reflexes could not be accurately measured due to excessive artifact. A February 26, 2008 VA treatment record notes she reported she was exposed to mortar fire in service, her hearing worsened over time, and she needed to start reading lips and have other people repeat themselves in the late 1980s. On December 2009 VA examination, she reported her hearing loss began in the early 1970s. Right ear mixed hearing loss and a combination of left hear sensorineural and mixed hearing loss were diagnosed. Audiometry showed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 65 60 55 55 60 Left 55 50 45 50 55 In a March 2012 statement, the Veteran disagreed with the December 2009 examiners opinion against the claim and noted she does not recall undergoing an audiogram at separation from service. A March 2012 VA treatment record notes the Veteran complained of excessive ear wax and was referred for cerumen management. In a July 2017 buddy statement, a fellow soldier recounted that her and the Veteran’s unit was stationed near an ammunition dump that exploded and they could barely hear due to the noise In a November 2017 private disability benefits questionnaire, bilateral mixed hearing loss was diagnosed. Her private provider opined that she could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation while also noting “likely noise induced from service in military.” At the August 2019 hearing, the Veteran testified that she did not use hearing protection in service, she was exposed to noise from incoming mortar fire and explosions during the Tet Offensive in November 1968, and she did not go to sick call while stationed in Vietnam from February 1968 to January 1969. On November 2020 VA examination, bilateral mixed hearing loss was diagnosed. The Veteran reported that she started experiencing difficulty with her hearing approximately 10 years after service. The examiner opined that the Veteran’s right ear hearing loss existed prior to service and was not aggravated beyond its normal progression in service, and bilateral hearing loss is less likely than not related to service. The examiner noted the August 1965 entrance audiological examination showed the Veteran had normal hearing sensitivity in the right ear at all frequencies except 4000 Hz and her January 1969 audiological examination showed she had normal hearing sensitivity at all test frequencies. The examiner observed that she had a positive history of cerumen impaction in the service, which may have caused her hearing to fluctuate while impacted. Acknowledging the Veteran’s noise exposure in service, the examiner stated noise exposure can cause hearing loss within the cochlea (which results in a SNHL) while this Veteran currently has a mixed hearing loss with a large conductive component in both ears rather than SNHL. The examiner opined the Veteran’s current hearing loss is likely due to her Paget’s disease, citing to medial treatise noting hearing loss is a prominent feature of Paget’s disease of bone when the skull is involved. It is not in dispute that the Veteran was exposed to loud noise in service and has bilateral hearing loss disability. What remains necessary to substantiate this claim is that the disability is etiologically related to her service. The Veteran’s August 1965 service entrance examination found that her right ear puretone threshold at 4000 hz was over 40 decibels (and that the puretone threshold at all frequencies tested were over 25 decibels in that ear), showing a right ear hearing loss disability as defined in 38 C.F.R. § 3.385. Consequently, a right ear hearing loss disability was noted on enlistment, and she is not entitled to a presumption of soundness on entry in service with respect to a right ear hearing loss disability. See 38 U.S.C. § 1111. However, the August 1965 service entrance audiometry found normal hearing in the left ear and no defect with respect to the left ear is noted. Consequently, she is entitled to a presumption of soundness on service entry with respect to a left ear hearing loss disability. For her current right ear hearing loss, the analysis turns to whether the pre-existing right ear hearing loss was aggravated by service. Aggravation is established by showing an increase in disability during service. Aggravation may not be considered where there was no increase in severity of a disability during service. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Consequently, the critical question in this matter is whether the pre-existing right ear hearing loss is shown to have increased in severity beyond natural progression during, or as a result of, service. Whether pre-existing disability increased in severity beyond natural progression of the disease during service (here not obvious in light of the up and down shifts in puretone thresholds between service entrance and separation) is a medical question. It requires medical expertise, applying medical principles to the information provided by diagnostic studies (audiometry). See Jandreau, 492 F.3d at 1377. Initially, it is noteworthy that while service entrance audiometry findings reflect a right ear hearing loss disability, service separation audiometry found normal right ear hearing (by puretone thresholds). Based on those findings alone, an increase in right ear hearing loss disability is not shown. However, because there were complaints of impacted cerumen and of intermittent hearing difficulty during service as well as more recent treatment of cerumen management, medical guidance was sought. The November 2020 examiner noted, while the cerumen impaction in the service may have caused her hearing to fluctuate while impacted, her right ear hearing was normal on separation and did not reflect an increase in right ear hearing loss during service beyond a normal progression. The provider is a medical professional competent to offer the opinion, and the opinion reflects familiarity with the Veteran’s entire record and includes rationale with citation to supporting factual data and scientific studies. It is probative evidence, and the Board finds it persuasive. Because there is no competent (medical opinion) evidence to the contrary, it is persuasive. Aggravation of the Veteran’s right ear hearing loss disability during service is not shown. The preponderance of the evidence is against a claim for service connection for right ear hearing loss. Accordingly, the appeal in the matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. What remains necessary to substantiate her remaining claim of service connection for left ear hearing loss is competent evidence that it is etiologically related to her service. See Shedden, 381 F.3d at 1167. The evidence does not show that a left ear hearing loss disability was manifested in service. The Veteran’s STRs note complaints of a plugged left ear and being treated for impacted cerumen; however, her STRs, including her January 1969 separation examination report, are silent for findings or diagnosis of left ear hearing loss. Likewise, a left ear hearing loss disability is not shown to been manifested within a year following the Veteran’s separation from service, and postservice continuity of hearing loss is not shown. While the Veteran may be competent to report a perception of a reduction of hearing acuity, she is not competent to establish by her own accounts of remote perceptions that she has had continuity of a left ear hearing loss disability since service; under 38 C.F.R. § 4.85 hearing loss disability must be established by specified audiometry. She initially reported becoming aware of reduced hearing between approximately 2003 and 2004 (see February 1, 2008 VA treatment record) and then reported reduced hearing approximately 10 years after separation from service (see February 26, 2008 VA treatment record and November 2020 VA examination); a hearing loss disability was first diagnosed by specified audiometry in 2008 (over 39 years after her separation from service). Therefore, service connection for left ear hearing loss on the basis that it became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112, or based on continuity under 38 C.F.R. § 3.303 (b)), is not warranted. Whether, without evidence of onset in service and continuity thereafter, a current left ear hearing loss may be related to remote service/exposure to noise therein is a medical question, beyond the realm of common knowledge, and incapable of resolution by lay observation. It requires require medical expertise. See Jandreau, 492 F.3d at 1377. The preponderance of the competent (medical) evidence is against a finding that the Veteran’s current left ear hearing loss is etiologically related to her active service. The Board finds the opinion by the November 2020 VA examiner to be both probative and persuasive. The examiner expressed familiarity with the Veteran’s record/medical history, and included rationale that cites to accurate factual data, including the Veteran’s reports of exposure to noise and treatment for cerumen impaction in service. The provider, who is a medical professional competent to offer the opinions, acknowledged the Veteran’s reports of noise exposure in service, but explained noise exposure can cause SNHL in the cochlea while the Veteran has mixed hearing loss with a large conductive component in both ears. The examiner opined that the Veteran’s left ear hearing loss is related to her [non-service-connected] Paget’s disease, noting hearing loss is a prominent feature when the skull is involved. The VA examiner is a medical professional, and is competent to offer her opinion, and the opinion reflects a familiarity with the Veteran’s entire record and includes rationale that cites to supporting factual data, and identifies an alternate likely known etiology in the non-service-connected Paget’s disease. The opinion is probative evidence in the matter, and without competent (medical) evidence to the contrary, is persuasive. The Board acknowledges the November 2017 statement in support of the claim but finds the opinion lacking in probative value. While the provider appears to indicate the Veteran’s hearing loss is related to exposure to noise in service, the provider also noted she could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resort to speculation, contradicting her own opinion. Therefore, it merits considerably less probative value. Sklar v. Brown, 5 Vet. App. 140, 146 (1993). The preponderance of the evidence is against a finding that the Veteran’s current left ear hearing loss is etiologically related to his service. Accordingly, the appeal in this matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.