Citation Nr: 21026517 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-41 582 DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The evidence is against a finding that the Veteran's bilateral hearing loss was caused by or onset during service, manifested to a compensable degree within one year of separation from service, or showed symptoms continuously since service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 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 on active duty from June 1973 to June 1975, with an earlier period of active duty for training in the Naval Reserve from April 8 to June 25, 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. Pursuant to the Board's remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the October 2019 letter to the Veteran. A Disability Benefits Questionnaire for Hearing Loss was completed in September 2020 and, as explained in more detail below, the DBQ was adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss The Veteran contends that his current hearing loss was caused by his in-service exposure to hazardous noise, including machinery and cannon fire. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (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 - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases (such as hearing loss as an organic disease of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection: "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Turning to the evidence, the Veteran's service treatment records show no complaint, treatment, or diagnosis of hearing loss during his service. The earliest medical examination of record is dated March 1973. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 25 20 LEFT 25 15 10 20 15 A second hearing examination was performed in June 1973. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 15 25 LEFT 25 15 15 10 25 In his June 1975 separation report of medical history, the Veteran denied hearing loss. The June 1975 report of medical examination indicates that the Veteran's pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 15 LEFT 20 20 15 10 10 VA treatment records indicate that the Veteran reported first reported difficulty hearing in April 2007. In April 2009, a VA doctor diagnosed mild to severe bilateral sensorineural hearing loss. The Veteran was issued hearing aids by VA in May 2009. The Veteran underwent a VA examination for hearing loss in June 2012. The examiner stated that the Veteran's test results were not reliable and not suitable for ratings purposes because there was variability in responses to pure tones of up to 15 dB on re-testing. The Veteran described a gradual hearing loss over the years. The examiner noted that the Veteran's in-service noise exposure included weapons fire and needle guns with hearing protection; his post-service noise exposure included car races without hearing protection and recreational gunfire with hearing protection. Although the examiner could not reliably measure the Veteran's hearing due to the inconsistency of the test results, he concluded that it is less likely than not that any hearing loss was caused by or onset during service. The examiner based this conclusion on a 2005 study by the Institute of Medicine which indicated that hearing loss caused by acoustic trauma does not have a delay in its onset, and the Veteran's separation examination which showed that his hearing had not worsened during his active duty service. The Veteran's private physician Dr. K. performed a hearing examination in February 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 55 70 LEFT 30 35 35 55 85 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear but did not indicate whether the testing used the Maryland CNC word list, as required by 38 C.F.R. § 4.85(a). Moreover, no opinion was given as to the etiology of the hearing loss. A Disability Benefits Questionnaire for Hearing Loss was prepared in September 2020. The audiologist performed an in-person examination and reviewed the VA e-folder. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 40 55 LEFT 25 25 25 50 65 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear. The audiologist diagnosed bilateral sensorineural hearing loss. She found that there was a positive permanent threshold shift for each ear. However, she concluded that it was less likely than not caused by or the result of military service because, although the Veteran was exposed to hazardous noise during his service, there was no change in his hearing acuity between his enlistment in March 1973 and his separation in June 1975. The audiologist noted that the Veteran worked in the construction field in some capacity since leaving the service in 1975; therefore, she concluded, it was less likely than not that the Veteran's hearing loss was a result of military service and more likely a result of post-service noise exposure. In September 2020, the Veteran filed a written statement that he was exposed to hazardous noise during his service both from paint-removal machinery and the three-inch guns on his ship. As an initial matter, the June 2012 VA examiner pointed out that the March 1973 induction examination indicates the Veteran had defective hearing. A review of the audiometry results taken at that time reflects that there was some degree of hearing loss; however, these results do not show hearing loss by VA standards in either ear. See McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding when a veteran's hearing loss did not meet VA's definition of a "disability" for hearing loss under 38 C.F.R. § 3.385, the veteran was entitled to the presumption of soundness under 38 U.S.C. § 1111); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss). Therefore, hearing loss was not noted on entrance into service and the Veteran is presumed sound as to hearing loss. 38 U.S.C. § 1111. Turning to the elements of service connection, the Veteran's hearing impairments met the VA definition of hearing loss in the February 2013 private testing and the September 2020 testing. 38 C.F.R. § 3.385. The first requirement of direct service connection is therefore present. Shedden, 1166-67. The Veteran's DD-214 Form does not clearly indicate his military occupational specialty during his active duty. The Veteran has reported that he served as a boatswain's mate. His duties required him to use paint-chipping machinery which generated loud noise and that he was also exposed to the noise of cannon fire, both without hearing protection. These duties are consistent with the occupation of a boatswain's mate. Furthermore, the Veteran is credible and competent to report that he was exposed to noise from paint removal machinery and three-inch guns without hearing protection, as he reported in his September 2020 Disability Benefits Questionnaire. Accordingly, the second requirement of direct service connection has been met. Shedden, 1166-67. However, the evidence is against a finding that the Veteran's current bilateral hearing loss was caused by his military service. There are two medical opinions of record. The September 2020 medical opinion holds substantial probative value because it is based on an examination of the Veteran and a review of his service treatment records and its conclusion is explained by a thorough rationale. It is thus entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no medical evidence indicating that the Veteran's current hearing loss is related to his service. The preponderance of evidence is also against a finding that bilateral hearing loss manifested to a compensable degree within one year of service separation to establish presumptive service connection as a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a). The separation audiogram of June 1975 showed hearing within normal limits and he denied hearing loss in his June 1975 medical history. The Veteran's service treatment records show no complaint, symptoms, diagnosis, or treatment for hearing loss while in service. There was no report of hearing loss until April 2007, nearly 32 years after the Veteran's June 1975 separation from service. The Veteran has not claimed that he had symptoms of hearing loss during service or within one year of separation from service. The preponderance of the evidence is therefore against a finding that the Veteran's hearing loss had its onset within one year of leaving the service to qualify for the chronic disease presumption. It is also against a finding that the hearing loss was noted in service with symptomatology continuously since leaving service. The Veteran did not indicate that he experienced hearing loss in and since service. Moreover, the Veteran's representative noted in the April 2021 appellate brief that the Veteran indicated he did not engage in combat. The combat provisions of 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) are therefore not for application. The Board has considered the Veteran's statements that his hearing loss was caused by his service; as a layperson, he is competent to testify regarding observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the probable etiology of a disorder such as hearing impairment falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged medical expertise, and he does not offer any supporting medical evidence. Therefore, his opinion as to the cause of the hearing loss has no probative value. In an April 2021 Appellate Brief, the Veteran contends that noise-induced hearing loss can be immediate in some cases while others take a considerable amount of time before the effects are noticeable. He cites a fact sheet from the National Institute on Deafness and Other Communications Disorders which states that "Exposure to impulse or continuous loud noise causes a temporary hearing loss that disappears 16 to 48 hours later. Recent research suggests that although the loss of hearing seems to disappear, there may be residual long-term damage to your hearing." The fact sheet is afforded little probative value, as the Veteran did not report a temporary hearing loss during service and the fact sheet does not provide any evidence relating to the specifical factual circumstances of this case. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting that treatise materials generally are not specific enough to show nexus). The September 2020 audiologist's opinion holds greater weight. Herlehy v. Brown, 4 Vet. App. 122, 123 (1993) (noting that medical opinions directed at specific patients generally are more probative than medical treatises). For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss is related to his in-service noise exposure. Accordingly, service connection must be denied. 38 C.F.R. § 3.303, 3.304. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.