Citation Nr: 21026573 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-04 254 DATE: May 3, 2021 ORDER 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 manifested in service, to a compensable degree within one year after separation from service or is otherwise related to service. 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, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1965 to January 1969. In a decision issued in September 2018, the Board granted service connection for bilateral tinnitus and denied service connection for bilateral hearing loss. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a Memorandum Decision vacating the Board's September 2018 decision, to the extent that it denied service connection for bilateral hearing loss and remanded the matter on appeal for adjudication consistent with the instructions outlined in the Memorandum Decision. The Court held that the Board erred when it did not address the Veteran's representative's February 2016 statement, wherein it was asserted that the "July 2014 VA audiologist inappropriately characterized the 2006 [Institute of Medicine (IOM)] study upon which her opinion relied, and that, although the 2006 IOM study did not establish a positive nexus between hearing loss and military service, neither did it rule out the possibility of a nexus to in-service events." See June 2020 CAVC Decision; see also February 2016 Appellate Brief. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. In addition, service connection for certain chronic diseases, including organic diseases of the nervous system such as bilateral hearing loss and tinnitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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, 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 Court has held that service connection can be granted for a 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 v. Brown, 5 Vet. App. 155, 159 (1993). Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 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, 1 Vet. App. at 53. Entitlement to service connection for bilateral hearing loss. The Veteran contends his bilateral hearing loss is due to hazardous noise exposure that he sustained on active duty. Audiological testing performed at the July 2014 VA examination confirms that the Veteran has bilateral sensorineural hearing loss and bilateral tinnitus. See July 2014 VA Examination Report. The Veteran's DD Form 214 shows he underwent training as a jet engine mechanic. As there is evidence that the Veteran worked around aircrafts, hazardous noise exposure during the Veteran's service is acknowledged. What still must be shown is competent medical evidence linking his current hearing loss disability to the hazardous noise exposure sustained in service. The Veteran's service treatment records (STRs) are silent for any complaints or treatment related to hearing loss. The Board notes that the Veteran underwent a hearing examination upon induction into the military, which revealed mild hearing loss at 3000 Hertz in the left ear. Notably, however, the Veteran's hearing was found to be within normal limits at separation. See STR Medical. In July 2014, the Veteran underwent a VA examination to evaluate the nature and etiology of his bilateral hearing loss. During the examination, the Veteran reported that he first noticed his bilateral hearing loss when he was in his 30's. The Board notes the Veteran was 24 years old when he was separated from service; therefore, by the Veteran's own admission his hearing loss was first noticed at least six years following his separation from service. Accordingly, it is not shown that the Veteran's bilateral hearing loss manifested in service or to a compensable degree within one year after separation from service. Regarding direct service connection, the Veteran reported at the July 2014 VA examination that he was first exposed to excessive noise while serving on the flight line while in the military. Following service, the Veteran indicated he worked on the assembly line at Chrysler for one year, as a mechanic for General Electric locomotive division for six years, as a mechanic for General Motors locomotive division for 12 years, on the assembly line at the General Motors Wentzville assembly plant for 12 years, and finally as an offline mechanic at General Motors for six years. The Veteran reported that he was intermittently exposed to loud noise from machinery while working at Chrysler and General Motors with the use of hearing protection. In addition to his occupational noise exposure, the Veteran reported a history of civilian recreational noise exposure in the form of weaponry while hunting. Upon examination, the VA examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hertz, and bilateral tinnitus. However, the examiner opined that the Veteran's hearing loss was less likely than not due to his active duty military service. In support of that opinion, the examiner noted that the Veteran's entrance examination, in August 1965, found hearing sensitivity thresholds to be within normal limits bilaterally, with the exception of a mild hearing loss at 3000 Hertz in the left ear. Furthermore, the examiner noted the Veteran's exit examination in December 1968 indicated that his hearing thresholds were the same, or better, than those obtained upon entrance in August 1965. Additionally, the examiner held that the literature on noise-induced hearing loss did not support the concept of delayed onset hearing loss years following exposure to noise. To support her position against the concept of delayed onset hearing loss, the examiner cited the Institute of Medicine's (IOM) 2006 report entitled, "Noise and Military Service: Implications for Hearing Loss and Tinnitus." Ultimately, the examiner concluded that due to the Veteran's normal hearing bilaterally at exit from the military, in combination with the literature indicating that there is no evidence supporting noise-induced hearing loss developing years after exposure to noise, the Veteran's current hearing loss was not caused by or a result of noise exposure during military service. See July 2014 VA Examination. In August 2014 the Veteran submitted a medical opinion from a private audiologist, who opined that the Veteran suffered from noise-induced hearing loss, which had required the use of hearing aids since 2007, as a result of his time from working around jet engines. See August 2014 Private Medical Opinion. In a February 2016 appellate brief, the Veteran, through his representative, contended that the IOM study, which the July 2014 VA examiner used, in part, to justify her conclusion that the Veteran's hearing loss was less likely than not caused by the Veteran's military service, should not be relied on. Specifically, the Veteran's representative contended that two of the IOM study's findings were: "The evidence is sufficient to conclude that, in the absence of audiograms obtained at the beginning and the end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service" and, "The evidence is not sufficient to determine the probability of acquiring a noise induced hearing loss associated with service in the military or in specific branches of the military, for a given individual." The Veteran's representative contended that it should be "apparent to a reasonable and unbiased mind" that, while this study did not establish a positive nexus between hearing loss and military service, neither did it rule out the possibility of a nexus to in-service events. Moreover, the representative held that as the study did not draw any specific conclusions to military service, denial of service connection based on the IOM study should be rendered void ab initio, or null from the beginning. See February 2016 Appellate Brief. The Board acknowledges the Veteran's representative's arguments in the February 2016 statement. Specifically, the Veteran's representative noted two conclusions that the IOM report reached. First, in the absence of audiograms at the beginning and end of military service, it is difficult or impossible to determine with certainty how much of a specific individual's hearing loss was acquired during military service. In this regard, the Board notes that the Veteran underwent hearing tests both at entrance and at separation from the military. Thus, the Board determines that the first IOM finding cited by the Veteran's representative is neither applicable, nor relevant to the question of whether a nexus exists between in-service noise exposure and the Veteran's current bilateral hearing loss. Second, the representative held that the study indicated that the evidence is not sufficient to determine the probability of acquiring a noise induced hearing loss associated with service in the military or in specific branches of the military for a given individual. The Board also finds that this is not relevant to the present case. The VA examiner was not asked to determine the general probability of acquiring noise induced hearing loss for an individual in a given branch of the military. Rather, the examiner was asked to opine whether, if based on the specific facts of this case, the Veteran's bilateral hearing loss was at least as likely as not (50 percent probability or greater) caused by the Veteran's military service. To that end, the Board finds that the VA examiner provided a highly probative opinion. The opinion was rendered by a trained audiologist and was well supported, as it was based on a review of the record, an accurate understanding of the Veteran's medical and occupational history, his lay statements, and an examination of the Veteran. Conversely, the Board finds the August 2014 private medical opinion to be not probative. The Board acknowledges that the examiner opined that the Veteran was diagnosed with "noise induced hearing loss from being around jet engines." The Board further acknowledges that in the prior September 2018 Board decision, it was determined that the private opinion was "competent, credible and highly probative" because it "provided an opinion supported by an adequate rationale." However, that portion of the Board's decision, which denied service connection for bilateral hearing loss, was vacated by the Court and the matter was remanded for further review and consideration. After reviewing the August 2014 private medical opinion anew the Board finds it to be conclusory and not supported by a sufficient rationale; indeed, there is no explanation as to causation and it is not clear how, and to what extent, the Veteran's bilateral hearing loss is due to in-service exposure to noise from jet engines. The private medical opinion also does not address the Veteran's history of postservice noise exposure. In Bloom v. West, 12 Vet. App. 185, 187 (1999), the Court held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." In Gabrielson v. Brown, 7 Vet. App. 36 (1994), the Court similarly held that when evaluating medical opinions, the Board may place greater weight on one medical professional's opinion over another's depending on factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence. Finally, in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008), the Court stated, "[An adequate] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." As the August 2014 private medical opinion does not include any explanation for the rationale of its opinion, it is conclusory in nature and has very limited to no probative value. In light of the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss manifested in service, within one year of service, or is otherwise etiologically related to active duty service, to include his duties of working as a jet engine mechanic. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Accordingly, the Veteran's claim for service connection for a bilateral hearing loss is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.