Citation Nr: 21026290 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-59 908 2/2017 DATE: April 30, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not incurred in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from May 1965 to May 1967. In February 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a new VA examination for his bilateral hearing loss. Specifically, the Board noted that the examiner should consider the Veteran’s lay statements. The Veteran received a new VA examination in February 2020, but the examiner failed to address the Veteran’s lay statements. Accordingly, the case was remanded again in October 2020 for a new VA examination. While an addendum opinion was provided in October 2020, the examiner still failed to consider the Veteran’s lay statements. Additionally, the examiner needed to consider American Standards Association (ASA) to International Standards Organization (ISO) unit conversion when discussing in-service threshold shift. Thus, the case was remanded again in January 2021. The Veteran received new VA examination in January 2021 that considered his lay statements and the ASA to ISO conversion. The February 2019 remand also directed that VA treatment records be obtained and that the AOJ provide the Veteran with release forms for private medical records. VA treatment records were added to his claims file. In September 2019, the AOJ provided the Veteran with records release forms so that VA could attempt to obtain private medical records. In his October 2019 response to the letter, he stated that he did not have additional records to submit and had not been treated by private medical providers. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). For veterans who served 90 days or more after December 31, 1946, the chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101(3), 1112(a)(1) (2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2020). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies 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 (2020). The VA examiners had differing opinions concerning the Veteran’s in-service noise exposure. However, Veteran served in the artillery in service and the Board finds that he had in-service noise exposure. The Veteran’s bilateral hearing loss meets the VA criteria to be considered a disability for VA purposes. See 38 C.F.R. § 3.385 (2020). Accordingly, the service connection element at issue is nexus. T The Veteran submitted a VA hearing loss and tinnitus Disability Benefits Questionnaire in December 2016. The examiner opined that the Veteran’s hearing loss was caused by his in-service noise exposure. However, as the Board noted in its February 2019 remand, this opinion is inadequate. The examiner did not provide a well-articulated rationale other than to state “serve[d] in Army Artillery.” The Veteran’s next VA examination was in February 2017. The examiner concluded that his hearing loss was not due to service because the Veteran had normal hearing upon leaving military service. In its February 2019 remand, the Board explained that the February 2017 opinion was inadequate because it relied on normal hearing at separation. The Veteran’s next VA examination was in February 2020. The examiner noted the Veteran’s job during service had a low probability of hazardous noise exposure. Additionally, there was no positive threshold shift during the Veteran’s time in service. Accordingly, the examiner opined that the Veteran’s hearing loss was not due to his military service. The February 2020 examiner provided a similar opinion. The examiner also noted that the Veteran’s enlistment and separation examination showed normal hearing. Thus, the examiner likewise opined that the Veteran’s hearing loss was not due to service. In an October 2020 addendum, the VA examiner noted that in 2006 the Institute of Medicine found that “the most profound auditory effects of noise exposure occur immediately following exposure.” Consequently, if the Veteran’s hearing loss was caused by in-service noise exposure its onset would be at separation. In its January 2021 remand, the Board found the February 2020 and October 2020 opinions inadequate because neither discussed the Veteran’s exposure to artillery fire and the October 2020 VA examiner did not convert the in service audiometric testing from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI). The most recent VA opinion was submitted in January 2021. The examiner, who is an audiologist, conceded the Veteran’s in-service noise exposure but noted bilateral hearing loss has other causes beyond noise exposure. The examiner found the Veteran’s lay statements relating his in-service noise exposure to his current hearing loss had no probative value. The examiner opined that even considering the Veteran’s job in service as causing excessive noise exposure, that job would only establish a circumstance under which noise-induced hearing loss could occur. According to the audiologist, the fact the Veteran was exposed to excessive noise does not sufficiently demonstrate to any significant likelihood that noise-induced hearing loss resulted. Furthermore, even after applying the ASA to ISO conversion for the Veteran’s separation audiogram, he still did not meet the criteria for VA hearing loss. Lastly, as an additional factor, the examiner also noted the 2006 Institute of Medicine finding for its significance to his opinion that the Veteran did not have hearing loss on his separation examination. The audiologist stated that if noise exposure caused hearing loss, it would have been present during service or at separation. The Board considers the lay and medical evidence of record in finding that service connection for bilateral hearing loss is not warranted. The Board acknowledges the Veteran’s lay opinion that his hearing loss is due to his in service noise exposure. However, the Veteran does not have the requisite training and medical knowledges to provide a competent medical opinion regarding the etiology of his hearing loss. Conversely, the January 2021 VA examiner’s opinion is afforded high probative weight. The audiologist performed the ASA/ISO conversions. He also considered the Veteran’s lay statements about his in service noise exposure and acknowledged that the noise exposure occurred. Thus, the Board finds that his opinion considered the lay and medical evidence of record. The Board notes that the Veteran’s bilateral hearing loss also did not develop within a year of separation such that presumptive service connection was warranted. Thus, as the preponderance of the probative evidence is against the Veteran’s claim, the Board finds that service connection for bilateral hearing loss is not warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.