Citation Nr: 21026921 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-16 366 DATE: May 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The objective medical evidence shows that bilateral hearing loss was not incurred in service and is not caused by an event, injury, or illness during active service; nor did it manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1964 to February 1967. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Establishing 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v, West, 12 Vet. App. 247 at 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Entitlement to service connection for bilateral hearing loss. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland Consonant-Vowel Nucleus-Consonant (CNC) Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is "from 0 to 20 dB and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). This matter was remanded by the Board in March 2021. The Board first noted that, as directed in a prior Remand in September 2019, the Veteran was afforded another VA examination for hearing loss in December 2019. The VA examiner opined that the Veteran's currently diagnosed bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. He explained in his rationale that the Veteran's entrance and separation examinations were both within normal limits bilaterally from 500 to 4000 Hertz. He also noted that there was no significant threshold shift noted between entrance and separation and the Veteran's audiometric configuration at separation was not consistent with acoustic trauma. The December 2019 VA examiner further cited to the Institute of Medicine (IOM) 2005 study that found there was insufficient scientific evidence for delayed-onset hearing loss related to military noise exposure. Therefore, he concluded that, since the Veteran's hearing was normal on discharge and there was no permanent significant threshold shift greater than normal measurement variability during service, there was no basis on which to conclude that current bilateral hearing loss was causally related to his military service, including noise exposure. However, the Board noted that the thresholds recorded during the Veteran's entrance and separation audiological evaluations in January 1964 and January1967 were presumed to have been recorded using American Standards Association (ASA) units. As such, they must be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) units by adding between 5 and 15 decibels to the recorded data as follows: HERTZ (HZ): 500 1000 2000 3000 4000 Add: 15 dB 10 10 10 5 It is the Board's understanding that, although the decibel-level (dB) findings will appear higher under the currently accepted ISO-ANSI units, the varying levels at the different frequencies will still be easily discernible. However, the March 2021 Board Remand, in noting the failure of the December 2019 VA examiner to convert the 1960s in-service findings, further noted he in turn failed to consider "the downward shift in the Veteran's hearing acuity between such audiograms at 500, 1000, 2000, and 4000 Hz in the right ear and 1000, 2000, and 4000 Hz in the left ear." The Remand added that the December 2019 VA examiner did not address the Veteran's lay statements of experiencing hearing loss since his military service and did not consider the qualifications noted in the IOM 2005 study that definitive studies addressing delayed onset hearing loss have not been performed and an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure. Based on the foregoing, the Board remanded the claim to obtain an addendum opinion regarding the etiology of the Veteran's bilateral hearing loss, in which the VA examiner would address the above concerns. That opinion is now of record as of April 2021. The VA examiner first set forth the in-service audiometric findings for VA purposes from the period of 1964 through 1967. He did not alter the findings by conversion to ISO-ANSI units, but stated them as originally recorded. Based on his summary and the Board's own review of the service treatment records (STRs), the in-service findings were as follows. The January 1964 enlistment examination showed: RIGHT EAR 500 Hz 0 dB 1000 0 2000 0 3000 -- 4000 0 LEFT EAR 500 Hz 5 dB 1000 0 2000 0 3000 -- 4000 0 The January 1966 periodic examination findings were the following: RIGHT EAR 250 Hz 5 dB 500 0 1000 0 2000 0 3000 -- 4000 0 8000 0 LEFT EAR 250 Hz 10 500 5 1000 5 2000 -5 3000 -- 4000 5 8000 -5 The Board will briefly note here that the inclusion in the January 1966 findings of frequencies of 250 and 8000 Hz are set forth as the VA examiner included them in his opinion. The January 1967 separation examination findings were as follows: RIGHT EAR 500 Hz 5 dB 1000 5 2000 5 3000 -- 4000 5 LEFT EAR 500 Hz 5 dB 1000 5 2000 5 3000 -- 4000 5 The VA examiner observed, "No significant shifts were noted between 1964 and 1967." He added that "[t]his addresses the comment made by the appeals center about there being a 'downward shift' in hearing between entrance and separation. The 5 dB difference between the 3 years of service is not significant and could even be attributed to test-retest rel[i]ability." He further noted that the STRs were negative for any report of hearing loss or tinnitus. The VA examiner next reviewed and summarized the audiometric findings made in the May 2018 VA examination for hearing loss, showing: RIGHT EAR 250 Hz 30 dB 500 25 1000 25 2000 30 3000 50 4000 50 6000 40 8000 25 LEFT EAR 250 Hz 25 dB 500 25 1000 20 2000 40 3000 45 4000 45 6000 50 8000 45 Maryland CNC speech discrimination test scores were right ear, 84 percent and left ear, 80 percent. The May 2018 VA examiner diagnosed sensorineural hearing loss in each ear. The VA examiner did not quote or summarize the May 2018 VA examiner's opinion, but the Board notes that in its September 2019 Remand it found the opinion inadequate, as the May 2018 VA examiner was required under case law to assess whether the Veteran's hearing loss is etiologically related to the claimed in-service military noise, despite the Veteran's hearing being within normal limits under VA law at separation from service. The May 2018 VA examiner opined only that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or a result of an event in military service because the Veteran's hearing was normal at separation. Additionally, he further failed to consider the Veteran's lay statements regarding the onset of his bilateral hearing loss and tinnitus symptoms. The VA examiner for the April 2021 addendum opinion next addressed the Veteran's lay evidence in the form of his reports. He stated: "It is my opinion that he had normal hearing at separation and the veteran reported careers with minimal noise exposures for the next 12 months after separation and it is as least as likely as not that his hearing status changed over the course of that 12 months. Following his separation he worked at BCBS [Blue Cross Blue Shield] as a mail clerk for 3 months, at Safeway as a grocery stocker for 3 months, and at the US Post Office as a mail handler for 5 months. Recreationally, he denies any noise exposures. No other otologic cond[i]tions were noted." The VA examiner further opined that the Veteran's hearing loss is less likely as not caused by or a result of acoustic trauma, explaining, as he had done in the December 2019 opinion, the entrance and separation examinations were both within normal limits bilaterally 500 4000 Hz, there was no significant threshold shift noted between entrance and separation, the Veteran's audiometric configuration at separation was not consistent with acoustic trauma, and he did not meet the criteria for service connection at separation. He added, "when evaluating his current degree of hearing loss, one cannot rule out contributions from his occupational noise exposure and aging effects." The VA examiner next quoted from the Institute of Medicine's "Noise and Military Service: Implications for Hearing Loss and Tinnitus" (Copyright 2006): "Studies regarding delayed onset of noise induced hearing loss have presented conflicting results. Authors have noted that normal hearing threshold sensitivity does not identify neural degeneration in the noise exposed. Careful reading of the studies show that the authors were talking about neural changes and not threshold sensitivity. Threshold sensitivity still remains the 'gold standard' for quantifying noise injuries in humans." He further noted that the IOM study addressed delayed hearing sensitivity changes and the study concluded, "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." Lastly, the VA examiner himself concluded: "Ratings are based on hearing thresholds and word recognition. Until that standard changes, the allegation that the Veteran sustained noise injuries cannot be objectively shown and is speculative. If hearing is normal on discharge AND there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure. There is no nexus between any current hearing loss and military service, regardless of the cause of the hearing loss." The Board briefly notes other evidence of record shows that in yearly visits to private treatment providers between 2008 and 2017, the Veteran denied hearing loss. In numerous visits between August 2016 and September 2017 to a private treatment provider for the Veteran's enlarged prostate, on review of systems, the Veteran each time denied any hearing loss. As a factual determination by the Board for the purposes of adjudication, in the absence of an objectively verifiable noise injury, as would be indicated by threshold shifts at the time of exposure, the association between claimed hearing loss and noise exposure cannot simply be assumed to exist; to do so is conjecture, not evidence. Finally, the STRs show no reports of hearing loss in active service, there is no medical evidence of diagnoses and treatment in active service and the record gives no indication of the manifestation of sensorineural hearing loss within a year of separation from active service. Looking to the possibility of continuity of symptomatology establishing a nexus between an in-service injury, such as due to noise exposure, and hearing loss as a subsequent chronic disease, the Board notes once again it was never identified in service, and putting aside the lack of medical evidence of any treatment for hearing loss at that time, it is otherwise impossible to establish continuity of symptomatology by relating the Veteran's current hearing loss to in-service noise exposure, particularly after the approximately 51 years since discharge from active service before hearing loss appears in the record. Consequently, the presumption of service connection for bilateral hearing loss as a chronic disease is not available to the Veteran. The Board has carefully considered the Veteran's several lay statements, to include statements accompanying his July 2018 Notice of Disagreement and June 2019 Veterans Appeals Form 9, as well as his reports to treatment providers and examiners as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. Nonetheless, the Veteran's lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran consistently contends in his statements and reports to treatment providers that hearing loss was incurred in active service, as he was assigned to an artillery unit, leading to frequent, excessive and intense noise exposure, resulting in bilateral hearing loss in active service and continuing thereafter. However, the medical evidence of record does support this contention. The audiological findings do not reveal in-service changes, that is to say, "threshold shifts," in 3 examinations spanning the period of the Veteran's active service. The record as it stands does not show the Veteran sought treatment directly after service or in the years following until, as it appears from the record, until undergoing a VA examination in May 2018. As the Board has noted, the record in fact shows in the period of 2008 through 2017, the Veteran never reported hearing loss to his private treatment providers. Additionally, the Veteran asserts in his June 2020 correspondence statement that he was not audiologically tested during service in South Korea or when rotated to back to the United States. However, the record does contain the in-service tests results set forth above. It seems as an alternative argument, the Veteran also asserts in the June 2020 statement that he could not find any reports in his records showing his hearing was the same at discharge as at induction. The Board further notes, most pertinently, his January 1967 separation examination, showing, as noted by the April 2021 VA examiner, shifts in hearing of no more than 5 dB in any of the frequencies considered for VA adjudication purposes (500 4000 Hz). For those purposes, that change in hearing is well below a finding of 20 dB or more indicating hearing loss. The Board assigns greater probative weight to the April 2021 addendum opinion, which incorporates the findings and conclusions which remain valid from the previous VA examinations and opinions, the VA examiner conducted an in-person examination of the Veteran in the December 2019 VA examination, he thoroughly reviewed the Veteran's medical history, and his opinions and rationales, for the reasons stated above, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). The overall record does not provide medical evidence causally relating the Veteran's in-service noise exposure to his current hearing disability. For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.