Citation Nr: 21026529 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-56 650 DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Hearing loss disability was not shown during service or for many years thereafter and is not otherwise shown to be related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to November 1969, including service in Vietnam. This matter is on appeal before the Board of Veterans Appeals (Board) from an April 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is of record. In November 2019, September 2020, and December 2020, the case was remanded for further development. Entitlement to service connection for bilateral hearing loss. Service connection may be established 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. 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). Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the currently claimed disability - which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. Certain listed, chronic disabilities, including bilateral hearing loss are presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (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). The evidence of record indicates that the Veteran served in the Field Artillery with service in Vietnam and was exposed to an intense rocket and rocket-propelled grenade attack in May 1969. The Veteran was provided with audiometric testing during his preinduction examination in July 1967 and during his November 1969 separation examination. On his November 1969 report of medical history at separation, the Veteran indicated that he had no prior or current hearing loss and no prior or current ear, nose, or throat trouble. At an August 2013 VA audiological consultation, the Veteran reported that he had had hearing loss since his Vietnam service and that it had been progressive since that time. He indicated that the hearing loss began after his fire base was mortared for an hour. He noted that he was in a bunker and the attack was directly above him. The diagnostic assessment was sloping to severe sensorineural hearing loss in both ears. An April 2014 VA audiological evaluation established that the Veteran has hearing loss disability under VA standards in both ears. 38 C.F.R. § 3.385. The examiner found that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of an event in military service. The examiner reasoned that the Veteran's preinduction audiogram revealed hearing within normal limits and a separation audiogram revealed hearing within normal limits. An April 2015 VA audiological evaluation by the same VA audiologist reached the same conclusion. In a June 2015, notice of disagreement, the Veteran reported that during his Vietnam service his primary function was as a member of a Howitzer fire crew. He indicated that this duty damaged his hearing. On his November 2016 Form 9, the Veteran noted his field artillery service in Vietnam and that his fire positions routinely came under mortar fire. He indicated that hearing protection was not readily available. He noted that at the end of his tour, he was sent home on emergency leave. He indicated when the Army out-processed him, he basically just received a "check the box" procedure, which was "quick and sloppy." He indicated that had he been given a proper physical and audiological test when out processed, this would have caught his hearing loss. At the August 2019 Board hearing, the Veteran testified that he experienced a mortar attack during his Vietnam service and also was involved in the response to this attack, including by firing large howitzer rounds without hearing protection for thirty minutes. The Veteran indicated that after this experience, he had intended to report to sick call due to experiencing problems with his hearing. However, he ended up talking to a medically assigned serviceman just outside the sick call who informed him that there was nothing that the medical personnel staffing the sick call could do to help him with his hearing problem. Consequently, he did not end up going inside the sick call for evaluation or treatment. The Veteran also testified that after service he worked as a teacher and high school football coach. The Veteran noted that since service, his hearing loss got worse and worse over the years and he eventually requested a hearing evaluation from VA and received hearing aids. Additionally, the Veteran's wife testified that after the Veteran came home from Vietnam, he continued to hold his ears and informed her that they were "not right." Additionally, both she and the Veteran reported that he underwent school hearing testing sometime in the early 1970s, which indicated that he could not hear well. At a January 2020 VA contract audiological evaluation, the Veteran was also found to have bilateral hearing loss disability. After examination and review of the claims file, the examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or a result of an event in military service. The examiner reasoned that the Veteran's hearing thresholds at time of entrance and separation were within normal limits. The examiner noted that according to the American College of Occupational Medicine Noise and Hearing Conservation Committee "a noise induced hearing loss will not progress once it is stopped." The examiner indicated that there was a lack of evidence in the claims file of any complaints of hearing loss during service and the time between service and the date of the Veteran's current evaluation was over 50 years without evidence of any audiology treatment in the intervening years. Therefore, it was the examiner's opinion that the Veteran's current bilateral hearing loss was less likely than not related to military noise exposure. In a February 2021 medical opinion, a VA contract audiologist reviewed the Veteran's claims file. The examiner converted the Veteran's July 1967 pre-induction audiological test results from ASA to ISO-ANSI standards. The examiner then compared the November 1967 per-induction results to the November 1969 separation examination, which she determined was appropriately considered to have been performed under ISO-ANSI standards. The audiologist found that comparison of the audiometric results did not show a significant threshold shift during service. The audiologist then opined that the Veteran's current bilateral hearing loss disability was less likely than not related to acoustic trauma in service. The examiner reasoned that typically hearing loss associated with noise exposure will demonstrate changes in hearing thresholds at or just after noise exposure but in the Veteran's case, there were no changes shown during military service or soon thereafter. Because the above summarized evidence indicates that the Veteran was exposed to the rocket grenade/mortar attack in service and because he more generally service in the Field Artillery, the Board finds that he was exposed to acoustic trauma during service. However, a hearing loss disability by VA standards was not shown in service and neither the medical evidence nor the Veteran's contemporaneous self-reporting indicates that the Veteran experienced any hearing loss during service. In this regard on his November 1969 report of medical history at separation, the Veteran indicated that he had no prior or current hearing loss and no prior or current ear, nose, or throat trouble. Also, there is no post-service medical evidence of hearing loss disability until 2013, approximately 44 years after service. This is a factor that weighs against a claim for direct service connection. See Maxson v. West, 12 Vet. App. 452 (1999), affd, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, there is no medical evidence of record, which supports a finding that the Veteran's current hearing loss disability is otherwise related to his military noise exposure/acoustic trauma. To the contrary, the February 2021 VA contract audiologist specifically found that the Veteran's current bilateral hearing loss disability was less likely than not related to acoustic trauma in service. The audiologist supported this opinion with an adequate rationale, that typically hearing loss associated with noise exposure will demonstrate changes in hearing thresholds at or just after noise exposure but in the Veteran's case, there were no changes shown during military service or soon thereafter. The Board notes that this rationale adequately accounts for the pertinent case law indicating that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. at 159. The Board also notes that the earlier January 2020 audiologist arrived at a similar finding to that of the February 2021 audiologist, reasoning that that there was a lack of evidence in the claims file of any complaints of hearing loss during service and that there was no medical evidence of post-service hearing problems for several decades. The Veteran has asserted that his hearing loss began in service and that it has been progressive since that time. See August 2013 VA audiological evaluation and August 2019 Board hearing testimony. However, as alluded to above, there is no medical evidence of hearing problems during service with the Veteran's November 1979 separation examination showing normal hearing bilaterally. Further, on his November 1979 report of medical history at separation, the Veteran specifically reported that he had no current or prior problems with hearing loss. In this regard, although the Veteran has reported his out processing was rushed, he has not asserted that he did not respond accurately on his medical history report. The Board presumes that had the Veteran experienced hearing loss during service after the mortar attack and that hearing loss continued through his separation, he would have indicated the presence of this problem on the separation medical history report. Consequently, the Board is unable to credit the Veteran's report of hearing loss occurring in service and continuing since service. For this same reason, the Board is unable to credit the testimony of the Veteran's wife that the Veteran was exhibiting hearing problems when he came home from Vietnam. Additionally, the Board also notes that post-service, the Veteran did not report the history of the abnormal hearing test in the 1970s prior to the August 2019 Board hearing. The Board presumes that had the Veteran been experiencing hearing problems in the 1970s with abnormal school testing and progressively worsening hearing loss thereafter, he would have reported this fact to VA medical personnel and/or VA adjudicators, earlier than August 2019. However, he did not make any such report when having specific opportunities to do so, including at his August 2013 initial audiology visit, on his June 2015 notice of disagreement (while advancing other argument), or on his November 2016 Form 9 (while advancing other argument). Given the absence of such reporting considered in conjunction with the lack of credibility concerning the report of hearing loss being present in service, the Board is also not able to credit the couples' testimony that the Veteran's hearing was shown to be poor on hearing testing done at school in the 1970s. Accordingly, the Board must credit the history indicated by the medical evidence and relied upon by the January 2020 and February 2021 audiologists, a lack of hearing problems during service or for many years thereafter. Further, to the extent that the Veteran is alleging that his current hearing loss disability is otherwise related to service (i.e. on a basis other than continuity of symptomatology), as a layperson without any demonstrated expertise concerning the etiology of bilateral hearing loss disability, this general assertion may not be afforded more than minimal probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, a hearing loss disability was not shown during service or for many years thereafter and the weight of the evidence is against a finding that the Veteran's current bilateral hearing loss disability is otherwise related to service. Accordingly, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. §§ 3.303, 3.385; Alemany, 9 Vet. App. 518 (1996). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.