Citation Nr: 21023682 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-25 785 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown as chronic in service, did not manifest to a compensable degree within the applicable presumptive period, a continuity of symptomatology is not established and is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1968 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and was previously remanded by the Board in April 2019. Specifically, the Board directed the RO to provide an etiology opinion that provided adequate rationale for its conclusions and to obtain the February 2014 audiological testing results. After an adequate opinion was provided, the RO issued a supplemental statement of the case in September 2020, further denying the claims. The matters now return to the Board. The Board also remanded a claim for a propriety of the reduction of rating for prostate cancer from 100 percent to 20 percent as well as a rating in excess of 20 percent for prostate cancer. An April 2020 rating decision restored the 100 percent rating for prostate cancer, effective March 12, 2012. Therefore, the Veteran has been rated as 100 percent disabled since March 12, 2012. Such represents a full grant of benefits on appeal. Service Connection Generally, service connection may be granted for a disability resulting from a 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). For Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 38 C.F.R. § 3.307(a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309(a). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that exposure to mortar, rocket fire and helicopters on the base constantly landing and taking off is the cause of his current bilateral hearing loss. See June 2016 Form 9. A December 2016 VA audiological examination revealed sensorineural hearing loss in both ears. Therefore, the Veteran has hearing loss for VA purposes under 38 C.F.R. § 3.385 and a current disability is established. The Veteran’s service treatment records note on his entrance audiology examination that his hearing was normal in January 1968. In January 1970, the Veteran’s separation audiology examination noted threshold shifts on various decibel levels, but no hearing loss was reported. In the Veteran’s post-service treatment records, there are various complaints of hearing loss and hearing difficulty. The earliest complaint was in September 2012. In April 2013, it was stated that the Veteran had hearing problems since the Army. However, no etiology opinion was provided to explain that conclusion. In June 2013, the Veteran was diagnosed with sensorineural hearing loss and in October 2015, it was noted that the Veteran had right middle ear conductive hearing loss. The Board has first considered whether service connection for bilateral hearing loss is warranted on a presumptive basis. However, the available evidence fails to show that the Veteran manifested bilateral hearing loss in his ears to a compensable degree within the one year following his release from active duty. The earliest diagnosis of hearing loss in his left ear was in June 2013, more than 40 years after service. Therefore, presumptive service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In the December 2016 VA examination, the examiner opined that the Veteran’s bilateral hearing loss was less likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner reasoned that the Veteran did not have a hearing loss when he entered or was discharged from the military and that his current hearing loss is more than likely due to post military factors such as presbycusis/hearing loss from aging, not military noise exposure. The examiner noted that the Veteran did show threshold shifts in both ears of 10 to 15 decibels but the shifts were not enough to cause him to have a hearing loss by VA standards or even a clinical hearing loss. As previously mentioned, the Board found this opinion to be inadequate in its April 2019 remand. This opinion is therefore afforded little, if any, probative weight. The Veteran was afforded another VA examination in August 2020. The examiner opined that the Veteran’s hearing loss was less likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner reasoned that a review of the Veteran’s claims file yielded no evidence of a hearing loss or significant decline in hearing thresholds greater than normal measurement variability during military service and that there was no record of complaint or treatment of the claimed condition during military service or within a reasonable time frame following service. The examiner noted that the Institute of Medicine (2006) states that there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure and that the panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss is “unlikely.” The examiner further noted that based on the objective evidence showing that the Veteran’s hearing was normal and stable throughout military service, and absent any evidence indicating that the Veteran sought treatment for the claimed condition within a reasonable time frame following service, it is the opinion of this examiner that the Veteran’s current hearing loss is less likely than not the result of or caused by an event during military service, including noise exposure. The examiner considered all evidence of record after thorough review of the claims file, including lay statements properly weighed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). (“[A] medical opinion…must support its conclusion with an analysis the Board can consider and weight against contrary opinion”). Furthermore, the medical examination reports contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, supra. Therefore, this medical opinion is of great probative value. There is no contrary opinion of record. The Board notes that the Veteran has submitted several articles about noise induced hearing loss during service, the noise levels of common military equipment, the impact of noise on hearing in the military, the 2006 Institute of Medicine article on noise and military service, military hearing loss and health issues related to Vietnam veterans. 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). However, treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "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 lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463(1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). In this case, the articles submitted by the Veteran provided only general information as to the relationship between noise exposure in service in hearing loss. Significantly, the 2006 Institute of Medicine report submitted by the Veteran was cited by the VA examiner in support of the etiology opinion. The articles were not accompanied by any corresponding clinical evidence specific to the Veteran and does not suggest a generic relationship between the Veteran's current bilateral hearing loss and service with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board finds this information to not be relevant as to the matter for consideration and, therefore, is not probative to this case. Wallin, supra; Sacks, supra. Although the Veteran contends that his exposure to rocket fire, mortar and loud helicopter landings caused his hearing loss, the threshold shift on his separation examination was still in the normal hearing range for military service. The threshold for normal hearing is from 0 to 20 decibels and the highest decibel shift on the Veteran’s separation audiology evaluation was 15 decibels, which is in the normal hearing range. See Hensley v. Brown, supra. Furthermore, the earliest compliant noted on the Veteran’s post-treatment records was in 2012, more than 40 years after separation from service. Therefore, the Veteran’s assertions are without merit. The Board acknowledges the statements of the Veteran as to the existence and etiology of his claimed bilateral hearing loss and acknowledges that the Veteran is competent to give evidence about what he experienced. For example, he is competent to discuss the fact that he experiences symptoms of pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, while the Veteran is competent to report his current symptoms, as a lay person he does not have the education, training, or experience to diagnose or opine as to the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Veteran’s statements are of low probative value. Thus, the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.