Citation Nr: 21027037 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-04 171 DATE: May 4, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the current left ear hearing loss was incurred during or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1999 to June 2003. In September 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. The claims file contains a transcript of the hearing. In a January 2021 Board Remand, the above-referenced claim was remanded to the RO for further evidentiary development and readjudication. The RO has substantially complied with the Board's remand instructions, so the Board may proceed to the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). The Veteran argues that his conceded noise exposure during his active service caused his left ear hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Relevantly, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled in service, except for defects, diseases, or infirmities noted at the time of entrance, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; see also Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Here, the record contains evidence of hearing loss in the left ear at 6000 Hz prior to entry into service. See August 1999 Report of Medical Examination (showing left ear hearing thresholds of 25 decibels or less from 500 to 4000 Hz and of 45 decibels at 6000 Hz). Moreover, a VA examiner has opined, based on the entire record to include this audiological examination, that the Veteran clearly and unmistakably had left ear hearing loss prior to entry into service. See January 2020 VA Examiner's Addendum Opinion ("His hearing loss [in the left ear] clearly and unmistakably existed prior to active duty service."); see also December 2019 VA Examination (noting entrance exam prior to service "showed a loss of 45 dB at 6000 Hz); May 2014 VA Examination ("Veteran had normal hearing AD [right ear] and moderate higher frequency HL AS [left ear] with moderate HL at 6 kHz AS [left ear] at the time of enlistment."). However, as explained in the January 2021 Board Remand, the record is against finding that the Veteran had a left ear hearing loss disability for VA purposes prior to entry into service. VA does not consider findings at 6000 Hz when determining whether a hearing loss disability is present. Therefore, the Veteran is presumed to have been sound on entry into service. The question for the Board, then, is whether is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of left ear hearing loss, and evidence shows that the Veteran did have in-service noise exposure, the preponderance of the evidence weighs against finding that the Veteran's left ear hearing loss began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was first diagnosed with left ear hearing loss that met the criteria for a hearing loss disability in September 2015, over a decade after separation from service. The May 2014 VA examiner opined that the Veteran's left ear hearing loss was not at least as likely caused by or a result of an event in military service. The examiner acknowledged that the Veteran had a high probability of exposure to hazardous noise. The examiner opined that the left ear hearing loss was less likely than not "caused by or a result of noise exposure in the military for AS [left ear]." While the opinion is against the claim, it is based in part on the VA examiner's opinion that the Veteran had left ear hearing loss that existed prior to service. The Board determined in its January 2021 remand that the Veteran did not have a pre-existing left ear hearing disability prior to enlistment. See also McKinney v. McDonald, 28 Vet. App. 15, 18-19 (2019). Because the May 2014 opinion is based on a factual/legal conclusion rejected by the Board, the Board assigns it no probative weight. The December 2016 VA examiner, as explained in the October 2019 Board Remand, provided an opinion without any rationale, with the consequent failure to discuss the in-service audiological examinations or provide medical reasoning connecting facts to the ultimate opinion. Therefore, the opinion is entitled to no 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"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The December 2019 VA examiner opined that the Veteran's left ear hearing loss was less likely than not caused by or a result of an event in military service. The examiner compared the entrance examination and exit examination which, according to the examiner, did not show a threshold shift and, in fact, showed improvement at 6000 Hz. The rationale is very brief and provides little reasoning, so is entitled to minimal probative value. Nieves, 22 Vet.App. at 304. The January 2020 VA examiner's addendum opinion, like the May 2014 VA examiner's opinion, is based on the premise that the Veteran had hearing loss that pre-existed his military service. As explained above, this defect renders the opinion inadequate and of no probative value. Finally, the record also includes a February 2021 VA examiner's opinion. The examiner states that it is her "clinical opinion that the Veteran's hearing loss in the left ear is less likely as not (less than 50/50 probability) caused by [or] a result of his in-service noise exposure." The examiner indicated that her opinion was based on a review of the entire file, her clinical expertise, review of relevant literature, and the current findings of hearing loss. The examiner provided an accurate summary of the Veteran's service, his noise exposure, and the in-service audiological examination results. The examiner noted that, although the separation examination showed a mild loss at 6000 Hz, there was no significant threshold shift in the left ear, so there is no objective evidence of noise injury in the left ear. Therefore, the examiner concluded that the current hearing loss is unlikely to be due to military noise exposure, but is more than likely due to the natural progression of his pre-existing hearing loss in the left ear. In rendering this opinion, the examiner explicitly acknowledged that the moderate hearing loss in the left ear shown on the entrance examination did not meet the criteria for a hearing loss disability. In the context of the entire record, the Board concludes that the examiner's opinion does not run afoul of the rule established by McKinney. Instead, the examiner merely expresses an opinion that the hearing thresholds noted on the Veteran's entrance examination are clinically significant and, given the lack of a threshold shift during service, are consistent with an etiology other than military service, to include a natural progression of hearing thresholds that were already higher than normal at 6000 Hz. The February 2021 VA examiner's opinion is thorough, contains a detailed discussion of the facts and medical principles at issue, and is otherwise well-reasoned and convincing. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). There are no adequate opinions of record that contradict the February 2021 VA examiner's opinion. The Veteran believes his left ear hearing loss is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the causes and clinical features of sensorineural hearing loss and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the February 2021 VA examiner's opinion. In short, the greater weight of the evidence establishes that the Veteran did not have a threshold shift during service and the greater weight of the evidence is against finding that his current left ear hearing loss was incurred in or is otherwise related to his active service. Entitlement to service connection for left ear hearing loss is denied. The Veteran has not raised any specific 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). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.