Citation Nr: 21025923 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-20 465 DATE: April 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise 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, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1953 to April 1957; and from February 1958 to October 1973, to include service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2019, October 2020, and January 2021 for additional development. It is now before the Board for further appellate review. 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that he is entitled to service connection for his bilateral hearing loss. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, 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, 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The results of a December 2018 VA examination demonstrate that the Veteran currently suffers from bilateral hearing loss for VA purposes. The current disability criterion is met. The Veteran’s military personnel records reveal that he served as an aircraft mechanic and a crew member while in the service. In the Veteran’s February 2019 Notice of Disagreement, he reported that he served on five aircraft carriers and was exposed to jet engine noise. He stated that his ears have been bothering him since the 1960’s. Review of the Veteran’s service treatment records (STRs) reveals a record from July 1970 which documents that he had high frequency hearing loss (with no accompanying audiogram or information regarding such loss). Additionally, his October 1973 separation examination documented a decrease in the Veteran’s hearing. As such, the Board finds that the Veteran was exposed to noise during his active service, and the in-service incurrence criterion is met. The final question is whether the Veteran’s current bilateral hearing loss is related to his in-service hearing loss. The Veteran appeared for a VA examination in December 2018 to determine the nature and etiology of his bilateral hearing loss. During the examination, the Veteran reported exposure to hazardous noise from ships, aircrafts, machinery, and small arms fire while in service. He also reported use of hearing protection. The audiological examination confirmed that the Veteran had hearing loss for VA purposes. The examiner opined that the Veteran’s hearing loss was less likely than not related to his military service. The examiner explained that the Veteran had hearing within normal limits while in service with no significant threshold shifts. In the August 2019 Board remand, the Board found the December 2018 VA medical opinion to be inadequate. Specifically, the examiner did not address the in-service decrease in the Veteran’s hearing and also did not address the notation of high frequency hearing loss. Thus, an addendum opinion was requested. Pursuant to the August 2019 Board remand, the December 2018 VA examiner, Dr. K. N., submitted an addendum opinion. In the opinion, Dr. K. N. stated that the Veteran’s hearing levels changed while in service, however, thresholds did not decrease to levels of hearing loss for VA purposes nor was the decrease sufficient to constitute a significant threshold shift. Thus, the Veteran did not incur impaired hearing while in service. The examiner also noted that during the Veteran’s military career, his hearing did decrease at a rate that was greater than normal for his age. In the October 2020 Board remand, the Board continued to find the VA medical opinion of record to be inadequate due to the examiner not addressing the July 1970 in-service notation of high frequency hearing loss. Thus, an additional addendum opinion was requested. In October 2020, Dr. K. N. provided a second addendum opinion. Dr. K. N. continued to opine that the Veteran’s current hearing loss is not related to his exposure to hazardous noise while in service. The examiner explained that delayed onset of hearing loss is extremely unlikely and provided medical research to support his opinion. Additionally, the examiner stated that there was no objective evidence that the Veteran experienced any noise-induced damage while in service. In December 2020, Dr. K. N. submitted a subsequent statement. In this statement, Dr K. N. reported that the July 1970 treatment record stated that the Veteran had high frequency hearing loss, but there was no audiogram or hearing thresholds recorded and no further explanation of the notation. Moreover, audiological evaluations recorded after the July 1970 record revealed hearing within normal limits. The Board again found the opinion to be inadequate and remanded for clarification in January 2021. Specifically, the examiner noted that the Veteran’s hearing loss decreased at a rate greater than normal age progression, however the examiner still determined that threshold changes while in service did not shift into hearing loss range, and did not constitute significant threshold shifts. A remand was requested for clarification of these findings. The examiner submitted a third addendum opinion in February 2021. In the addendum opinion, the examiner explained that the Veteran did not incur impaired hearing or significant threshold shifts by the VA’s standards in either ear during military service. Thus, it was less likely than not that any current hearing loss was due to noise exposure during the Veteran’s active service. When read together, the VA examiner’s opinions are adequate for rating purposes. These opinions considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Moreover, the Board finds these opinions to be probative evidence against the Veteran’s claim. These opinions, when read as a whole, establish that while the Veteran’s hearing did diminish in service, such diminishment did not result in hearing loss for VA purposes, nor did these results reflect significant threshold shifts. Dr. K. N. explained the controversy surrounding delayed onset hearing loss (with specific citations to medical literature and discussion of their importance), but concluded that because the Veteran retired without a hearing disability for VA purposes, it is less likely than not that the Veteran’s current bilateral hearing loss is related to his service. Dr. K. N. addressed each question from the Board’s remands, and his statements facilitate judicial review (this also shows substantial compliance with the Board’s remand directives). Finally, there is no competent evidence to weigh against Dr. K. N.’s opinion. As such, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for service connection for bilateral hearing loss. While the Board acknowledges the Veteran’s lay statements, the Veteran in this case is not competent to provide a nexus opinion regarding this issue as it is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to Dr. K. N.’s medical opinion. Finally, there is no evidence of the Veteran experiencing hearing loss to a compensable degree within a year of his retirement, nor is there evidence supporting a continuity of symptomatology from his retirement to his later diagnosis of bilateral hearing loss. Accordingly, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, 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.