Citation Nr: 21024960 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-30 890 DATE: April 27, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The most probative evidence of record does not show that it is at least as likely as not that the Veteran’s right ear hearing loss had its onset during or is otherwise related to active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.306, 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 December 1963 to December 1965. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In a September 2018 decision, the Board denied service connection for right ear hearing loss and residuals of right ear abscess/infection. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2020 Memorandum Decision, the Court both affirmed the Board’s denial of residuals of right ear abscess/infection and vacated the Board’s September 2018 decision in so far as it denied entitlement to service connection for right ear hearing loss. The Court then remanded the matter to the Board for compliance with the decision. In October 2020, the Board remanded the claim for entitlement to service connection for right ear hearing loss to the RO to obtain an addendum medical opinion concerning whether the Veteran’s right ear hearing loss was causally related to his military service, to include exposure to acoustic trauma in service. The case has since been returned to the Board for appellate review. The Board has considered the Veteran’s claim and decided entitlement based on the evidence of record. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to the Veteran’s claims. See Douchette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Entitlement to service connection for right ear hearing loss Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. VA recognizes that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The absence of in-service evidence of a hearing disability (meeting the criteria of 38 C.F.R. § 3.385) during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be established 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that his right ear hearing loss is etiologically related to in-service exposure to acoustic trauma. As an initial matter, the Board finds that the record established a current right ear hearing loss disability for VA purposes in accordance with 38 C.F.R. § 3.385. Bilateral sensorineural hearing loss was demonstrated at an audiogram performed during a VA audiological examination in November 2017. The Board acknowledges that service treatment records (STRs) could not be located for the Veteran’s period of active duty service in the U.S. Army. STRs from his active duty service in the Reserves show normal audiological evaluations in March 1978, June 1982, and April 1986. A subsequent evaluation in July 1990 also indicated normal hearing. There is no evidence of a dramatic shift in the Veteran’s hearing in his right ear during service. His STRs are silent as to any complaints of or treatment for hearing loss during service. Post-service treatment records show that the Veteran first sought treatment for his right ear hearing loss in June 2013. During the June 2013 audiology consult, an audiological evaluation revealed mild to moderately severe sensorineural hearing loss for the right ear. Word recognition ability was 100 percent for the right ear at a presentation level of 70db HL. See CAPRI, received in March 2014. In September 2013, the Veteran was diagnosed with mixed hearing loss in the right ear. Thereafter, he was fitted for a hearing aid. See Medical Treatment Record – Government Facility, received April 2015. Pursuant to the June 2017 Board remand, the Veteran underwent a VA audiological examination in November 2017. Audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 60 50 75 80 LEFT 35 35 45 45 50 Speech audiometry revealed speech recognition ability of 80 percent in both ears, using the Maryland CNC word list. The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500-4000 Hertz. She opined that the Veteran’s right ear hearing loss was less likely than not (less than 50 percent probability) related to military noise exposure/acoustic trauma. She stated that in-service audiological examination in 1978 and 1990 revealed normal hearing. As rationale, she cited the American College of Occupational Medicine Noise and Hearing Conservation Committee, which found that “a noise induced hearing loss will not progress once it is stopped.” Following the October 2020 Board remand, an addendum medical opinion was obtained in January 2021. The January 2021 examiner opined that the Veteran’s right ear hearing loss was less likely than not (less than 50 percent probability) causally related to military noise exposure. As rationale, she noted that the Veteran served on active duty from December 1963 to December 1965, and that while there were no entrance or separation examinations for this period available for review in the claims file, there were audiological examinations from 1978, 1982, 1986, and 1990, during the Veteran’s service in the Reserves, which all indicated normal hearing. She explained that even though the probability of noise exposure with an MOS of Clerk Typist would have been low, the Veteran likely would have been exposed to noise in-service during basic training. However, she then again noted that the Veteran’s hearing examinations from 1978 through 1990 all indicated normal hearing. She explained that the first audiological evaluation in the Veteran’s claims file that showed hearing loss in the right ear was the November 2017 VA audiological examination, which she noted was significantly post service. The January 2021 examiner stated that current literature did not support late onset hearing loss from military noise exposure. Citing specific literature, she explained that while some animal studies have indicated that noise exposure earlier in life could be related to more progressive hearing loss later in life, generalized findings from rodent studies to humans is fraught with difficulties and at best, should be undertaken with great caution. She then cited Kujawa and Liberman (2006), which stated that “hearing losses in humans are multifactorial with contributions from, and potential interactions among numerous variables that can shape final outcomes.” She explained that any noise exposure through the Veteran’s life, including traffic noise and smoke alarms, would have to be considered in addition to any military noise exposure. She further noted that many factors contribute to age related hearing loss, including genetic predisposition and medical conditions. She found that evidence was against a nexus in this case and therefore concluded that it was less likely than not that the hearing loss is related to military noise exposure. After careful consideration, the Board finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s current right ear hearing loss is etiologically related to military service. The November 2017 and the January 2021 VA examiners opined that it was less likely than not that the Veteran’s right ear hearing loss was etiologically related to military service, to include exposure to in-service acoustic trauma. As the examiners conducted relevant testing, and made clinical findings consistent with their expertise as medical professionals, the Board finds their reports, when taken together, to be of significant probative weight. (Continued on the next page)   The Board has considered the lay statements and contentions made by the Veteran and his representative. However, the ability to etiologically relate hearing loss to military service requires complex medical knowledge and specialized audiometric testing that is beyond the capacity of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); 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); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.