Citation Nr: 21023831 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-04 112 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A hearing disability was not present during the Veteran’s active service, sensorineural hearing loss is not shown to have been manifest to a compensable degree within one year of service separation, and the most probative evidence establishes that the Veteran’s current bilateral hearing loss disability is not related to his active service or any incident therein, including noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 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 from July 1963 to July 1967. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which, inter alia, denied service connection for bilateral hearing loss. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in February 2020. At that time, the Board, inter alia, remanded the claim for further evidentiary development, to include a VA examination. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including an organic disease of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his bilateral hearing loss is due to noise exposure during active duty. See January 7, 2020 Transcript of Hearing, page 3. Service treatment records (STRs) do not contain complaints or findings of hearing loss. At his July 1963 enlistment examination, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) -10 (0) -5 (0) LEFT -5 (10) -10 (0) -10 (0) -5 (0) (Note: as this audiometric testing was conducted prior to January 1, 1967, the results were presumably reported in American Standards Association (ASA) units. Where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) standard. The converted results are reported in parentheses above). At an April 1965 isolated duty examination, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) -5 (5) 5 (15) 5 (10) LEFT -5 (10) -5 (5) -10 (0) -5 (5) 0 (5) The Veteran’s May 1967 separation examination recorded pure tone thresholds, in dB, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -5 (5) -5 (5) -5 (5) 0 (5) LEFT -10 (5) -10 (0) -5 (5) 5 (15) 0 (5) (Note: Given the date of this test, it is unclear whether such thresholds were recorded in using ASA units or ISO-ANSI units; thus, Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal, if any.). The Veteran was afforded a VA audiological examination for hearing loss and tinnitus in March 2012. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 35 35 LEFT 35 30 35 40 45 Speech recognition using the Maryland CNC word list was 92 percent in the right ear and 92 percent in the left. After examination of the Veteran and review of the claims file, the audiologist offered a negative etiological opinion regarding the Veteran’s bilateral hearing loss. The audiologist opined, Enlistment and separation audio show normal hearing in both ears with no significant threshold shift. The Veteran was afforded a VA audiological examination for hearing loss and tinnitus in January 2016. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 35 40 50 LEFT 30 25 30 35 40 Speech recognition using the Maryland CNC word list was 96 percent in the right ear and 96 percent in the left. After examination of the Veteran and review of the claims file, the audiologist offered a negative etiological opinion regarding the Veteran’s bilateral hearing loss. The audiologist opined, Veteran showed normal bilateral hearing ability on both entrance and separation military hearing tests with no significant threshold increases during service. At the January 2020 Board hearing, noted above, the Veteran testified that during active duty he was exposed to jet engine noise and compressors as a jet engine mechanic. He testified that he began experiencing hearing difficulties “several years back” and that he started using hearing aids approximately 10 years ago. See January 2020 Transcript of Hearing, pages 2-5. Pursuant to the Board’s February 2020 remand instructions, the Veteran was afforded a VA audiological examination in July 2020. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 50 50 55 60 LEFT 55 45 55 55 60 Speech recognition using the Maryland CNC word list was 60 percent in the right ear and 40 percent in the left. After examination of the Veteran and review of the claims file, the audiologist offered a negative etiological opinion regarding the Veteran’s bilateral hearing loss. The audiologist opined, The Veteran served in the Air Force 26 July 1963 – 25 July 1967. The Veteran’s MOS was that of Aircraft Mechanic with a high probability for noise exposure. The Veteran is Service Connected for Tinnitus. An exam dated 16 July 1963 indicated hearing WNL [within normal limits] in both ears after conversion from ASA to modern ANSI Standards, as did an exam upon separation dated 16 May 1967. This represents no significant threshold shifts from enlistment to separation, which is objective evidence of no permanent auditory damage resulting in a drop in hearing on active duty from conceded noise. There is no report of complaint/treatment for hearing decrease in STRs or at separation. Although noise exposure is conceded and the relationship of noise exposure, cochlear auditory damage and hearing loss is well-established, cochlear auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of cochlear auditory damage to relate current hearing loss to military noise exposure and not another etiology. The evidence is against the nexus in this case. It is less likely than not that the veteran’s hearing loss is caused by or the result of military noise exposure. A whisper test was not administered upon separation. An ear and frequency specific exam was administered and dated 5/16/1967. All in service examinations available for review indicated hearing WNL in both ears, including: 10 June 1964, 19 April 1965, and 16 May 1967. The first exam indicating hearing loss is a C&P examination dated 3/17/2012. The exam indicates mild loss in both ears sloping to a moderate loss by 8kHz in the right ear and mild loss sloping to a severe loss by 8kHz in the left ear. Onset of the Veteran’s hearing loss is sometime after 16 May 1967. Although noise exposure is conceded, and the relationship between noise exposure, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. The Institute of Medicine report (Noise and Military Service, September 2005) concluded that, based on current knowledge, noise induced hearing loss occurs immediately (i.e. there is no evidence to support delayed onset of noise induced hearing loss years after the exposure). There was no evidence or complaint of hearing loss within a reasonable time post active duty. The evidence is against the nexus in this case. Therefore, it is less likely than not that the veteran’s bilateral hearing loss is caused by or the result of military noise exposure. In the remarks section of the examination report, the examiner indicated the following in pertinent part: An exam upon enlistment dated 16 July 1963 indicated hearing WNL in both ears after conversion from ASA to modern ANSI Standards, as does a mid service exam dated 19 April 1965 (WNL in both ears after conversion from ASA to modern ANSI Standards.) Additionally, an exam upon separation dated 16 May 1967 indicates hearing WNL in both ears, again after conversion from ASA to modern ANSI Standards. No significant threshold shifts have occurred from enlistment to separation, nor from enlistment to the mid service (1965) exam, nor from the mid service exam to separation exam. After applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. In addressing the first element of a service connection claim, the Board finds that the Veteran currently has bilateral hearing loss. As noted in his most recent July 2020 VA examination, the Veteran’s pure tone thresholds for the 500, 1000, 2000, 3000, and 4000 Hz frequencies for the right and left ear were greater than 40 decibels. Additionally, his speech recognition scores for the right and left ear were less than 94 percent. Therefore, the Veteran has bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. With regard to the second element, the Board finds in-service noise exposure. The Veteran has reported that he was exposed to jet engine noise and compressors during active service. The Board notes that the Veteran’s personnel records indicate that his MOS was an aircraft mechanic, a position generally consistent with noise exposure. Thus, the Board finds that the record is sufficient to establish an in-service injury in the form of noise exposure. The record, however, does not establish an in-service disease; rather, audiometric testing during active duty was consistently within normal limits, establishing that hearing loss did not have its inception during active duty. In addressing the third element, the nexus requirement, the Board finds that the Veteran’s bilateral hearing loss is not causally related to his in-service noise exposure. Although the Veteran has reported that his hearing loss is attributable to in-service noise exposure, audiometric testing showed normal hearing acuity at separation. Notably, the Veteran testified at the January 2020 Board hearing that he began experiencing hearing difficulties “several years back” and that he started using hearing aids approximately 10 years ago. Moreover, the record does not contain probative clinical or lay evidence of continuity of symptomatology since service. The first post-service evidence of a hearing loss disability was not until 2012 and the Veteran has not alleged continuity of symptomatology. The Board notes that the absence of evidence of a hearing disability during service is not in and of itself fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, evidence of current hearing loss and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, however, the preponderance of the evidence is against a finding that the Veteran’s current hearing loss disability is related to service. In that regard, the Board assigns great probative weight to the July 2020 VA examination, as the audiologist reviewed the Veteran’s claims file in its entirety and considered the Veteran’s reported history. After considering the record, the audiologist concluded that the Veteran’s hearing loss was not causally related to service. The audiologist provided a clear rationale, citing the nature of the Veteran’s current hearing pathology and current knowledge about the relationship between acoustic trauma and hearing loss in her determination. Additionally, the audiologist explained that there was not a significant threshold shift between the Veteran’s entrance, isolated duty, and separation examinations. The Board assigns less probative weight to the January 2016 VA examination, which was found to be inadequate in the February 2020 Board remand to the extent the examiner failed to consider the April 1965 isolated duty examination and provide a reasoned medical explanation for concluding that the Veteran’s bilateral hearing loss was not causally related to active service. The Board also assigns less probative weight to the March 2012 VA examination, as the examiner similarly failed to consider the April 1965 isolated duty examination. In addition, the Board assigns less probative weight to the Veteran’s hearing testimony indicating that his hearing loss was caused by active duty. Although the Veteran is competent to describe symptoms, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the July 2020 VA examiner, given her clinical expertise and the rationale she provided. In reaching its determination, the Board has considered the decision of the United States Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243 (2019). In McCray, the Court discussed the Institute of Medicine (IOM) report cited by the July 2020 VA examiner, noting that it had concluded, in part, that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The IOM report also indicated that there was 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, and that definitive studies to address this issue have not been performed. The Court then held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Id. at 257. Although not raised by the Veteran, the Board acknowledges that the VA examiner relied, in part, on the 2005 IOM report as a basis for providing a negative opinion, and the 2005 IOM report has qualifying statements, as noted by McCray. The Board finds this does not render the entire opinion inadequate or diminish its probative value. The Board notes that the IOM report acknowledged that there was insufficient evidence to address the question of delayed onset noise-induced hearing loss. Nevertheless, the IOM report’s own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (unlikely). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The Board finds that the use of the word extremely also lends much support to finding that the report retains its probative value and is not inadequate. The Board further notes that no opposing studies or other contradictory medical evidence has been submitted in this appeal. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to present and support a claim for benefits and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Moreover, the McCray court referenced a medical text’s qualifying or contradictory aspects as one factor on a non-exhaustive list that is relevant to the Board’s evaluation of the probative value and adequacy of a medical opinion. McCray, 31 Vet. App. 243. Here, the July 2020 VA examiner only partially relied on the findings of the 2005 IOM report and discussed other factors that led to her ultimate conclusion. Thus, the VA examiner did not rely entirely on the IOM report in forming the conclusion but, instead, considered all relevant facts in this case. Her opinion and rationale are the most probative evidence of record on the etiology of the Veteran’s bilateral hearing loss. Reading the examiner’s opinion as a whole, the examiner relied on accurate facts, expressly considered the Veteran’s in-service noise exposure, described the Veteran’s disability in sufficient detail, related medical literature to the Veteran’s specific facts, and provided a reasoned medical explanation that connected her conclusion to supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Based on the foregoing, as the probative evidence is against the Veteran’s claim for service connection for bilateral hearing loss, the benefit-of the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the elements of service connection are not met, and the Veteran’s claim for bilateral hearing loss is denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.