Citation Nr: 21025258 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-22 867 DATE: April 27, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran's left ear hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to March 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in July 2017. The Board remanded this matter in September 2018 and December 2020 for additional development. The matter is now returned to the Board for further appellate review. Entitlement to service connection for left ear hearing loss The Veteran contends his left ear hearing loss is due to his military service, to include as a trumpet player in the Marine Corps Band, or in the alternative, as a rifleman in the Quantico Marine Base Ceremonial Platoon. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection can be established if the Veteran has a disability at any point during the course of the appeal, even if such disability subsequently resolves. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Certain chronic diseases, including bilateral hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if they manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, if those same diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997) (Overruled on other grounds by Walker, 708 F.3d 1331). For purposes of the laws administered by VA, impaired hearing will be considered a disability 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. 38 C.F.R. § 3.385. The failure to meet these criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." See Hensley v. Brown, 5 Vet. App. 155, 160(1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, VA most recently provided the Veteran an audiological examination in January 2021. For the Veteran’s left ear, the examiner reported auditory thresholds in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz of less than 40 decibels; only two of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 26 decibels or greater; and a Maryland CNC Test of 96 percent. Accordingly, the Veteran does not have hearing loss for VA purposes according to the January 2021 VA audiological exam. The September 2019 VA audiological examiner reported auditory thresholds in the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz of less than 40 decibels; only two of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 26 decibels or greater; however, the examiner reported a Maryland CNC Test of 92 percent. Accordingly, the Veteran did have a left ear hearing loss disability for VA purposes during the pendency of his appeal. See McLain, 21 Vet. App. at 321. The Board finds the presumptive provisions regarding chronic diseases do not establish entitlement to service connection in this case as the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The first evidence showing the Veteran has left ear hearing loss for VA purposes under 38 C.F.R. § 3.385 was the audiological evaluation performed during the September 2019 VA examination, almost 30 years after his separation from service. The record indicates the Veteran may have experienced symptoms associated with his hearing loss, such as tinnitus, but there is no evidence showing onset of left ear hearing loss for VA purposes during service or within one year of the Veteran's separation from service in 1991. As noted above, the Veteran has a diagnosis of left ear hearing loss for VA purposes and in-service acoustic trauma has been conceded due to the Veteran's military duties. Thus, the only issue that remains is whether there is a nexus between the in-service injury and the current disability. The Board concludes that, while the Veteran has a diagnosis of left ear hearing loss and in-service acoustic trauma is conceded, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left ear hearing loss began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with left ear hearing loss until September 2019, nearly three decades after his separation from service. While the Veteran is competent to report having experienced symptoms of difficulty understanding conversations, especially when there is background noise, he is not competent to determine that these symptoms were manifestations of left ear hearing loss, particularly when the Veteran is already service connected for right ear hearing loss. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). VA previously provided several examinations to address the etiology of the Veteran’s hearing loss. These examinations were deemed inadequate with respect to addressing the etiology of the Veteran’s left ear hearing loss; thus, the issue was remanded again in December 2020 to obtain a new opinion. VA provided the Veteran an audiological examination in January 2021. The January 2021 VA examiner opined that the Veteran’s left ear hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including his conceded noise exposure. The examiner provided an in-person examination, reviewed relevant records, reviewed relevant medical texts, and specifically addressed the Veteran’s contentions that his left ear hearing loss is related to playing the trumpet or firing weapons during active duty. Further, she considered that the Veteran is service connected for right ear hearing loss, that he was placed on a hearing conservation program in service and that he was issued hearing protection in service. In reaching the negative nexus opinion, the examiner noted that the Veteran's left ear hearing was within normal limits at his separation from service in March 1991 and that there was no clinically significant threshold shift shown in service at any frequency. The examiner explained a clinically significant threshold shift in service would be expected if excessive military noise exposure caused the current left ear hearing loss disability. Moreover, she noted no controlled longitudinal studies have been performed that show that noise exposure when younger can lead to hearing loss in later life. The examiner concluded that in the absence of a significant threshold shift, there is no evidence to support delayed onset hearing loss. Further, she cited to an Institute of Medicine Study (IOM) (2005) that has determined there is insufficient scientific basis to conclude that permanent hearing loss, directly attributable to noise exposure, will develop long after cessation of that noise exposure. However, the examiner reported that the IOM panel concluded that, based on their current understanding of auditory physiology and the data available, a prolonged delay in the onset of noise-induced hearing loss is "unlikely.” The examiner specifically addressed a study the Veteran referenced in his August 2020 Informal Hearing Presentation (IHP), which suggests musicians are almost three times more likely to develop hearing loss than the general population. The examiner researched this contention and noted that the statement came from the National Institute on Deafness and Communication Disorders (NIDCD); however, she reported NIDCD did not provide any citations to support the conclusion. The examiner reviewed applicable research and texts that addressed hearing loss in musicians and concluded the relevant texts and research both support and refute that noise-induced hearing loss is more common in musicians. However, she reported that only immediate-onset noise-induced hearing loss is recognized in the literature and there is no evidence to support delayed-onset hearing loss in musicians. Further, the examiner explained that although most hearing loss is symmetrical, asymmetrical hearing loss is possible and supported by research. She reported that asymmetrical hearing loss is present in musicians and is impacted by the type of instrument. Finally, the audiologist noted that the fact that there was a significant shift for the right ear from entrance to separation but not any shift for the left ear further supports that the right ear’s loss of hearing was due to military noise but the left ear hearing loss is more likely due to some other cause and not military noise. The Board acknowledges a lack of left hearing loss disability at separation from service does not foreclose the issue of service connection for subsequently demonstrated hearing loss. See Hensley, 5 Vet. App. 155. In Hensley v. Brown, the Court of Appeals for Veterans Claims (Court) held that VA may not deny service connection based solely on normal audiometric test results upon separation from service where the record contains other evidence linking hearing loss to service. Hensley, 5 Vet. App. at 160. Here, however, there is no competent evidence that links the Veteran's current left ear hearing loss disability to his noise exposure on active duty. While the Veteran is competent to report the symptoms of hearing loss, he does not possess the requisite expertise or training to address more complex medical issues such as the etiology of his current left ear hearing loss disability. Therefore, his opinion that his current left ear hearing loss disability is related to noise exposure during service is not entitled to probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board concludes the January 2021 examiner's opinion is highly probative because it is based on an accurate medical history, references relevant studies, addresses the Veteran’s contentions, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). (Continued on the next page)   In consideration of the evidence, the Board finds that his left ear hearing loss is not related to service and the claim is denied. The benefit-of-the-doubt doctrine is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.