Citation Nr: 21027145 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-25 210 DATE: May 4, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT A right ear hearing loss disability was not manifested during the Veteran's service, or to a compensable degree within one year following his discharge from service, and such disability is not shown to be etiologically related to his service. CONCLUSION OF LAW Service connection for right ear hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1970 to July 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 Department of Veterans' Affairs (VA) rating decision. In July 2016, a video conference Board hearing was held before the undersigned; a transcript is in the record. In July 2018, April 2020, and November 2020, the Board remanded the matter for additional development. Entitlement to service connection for right ear hearing loss. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include sensorineural hearing loss (SNHL) as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation from service (one year for organic diseases of the nervous system and psychoses). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran contends that his right ear hearing loss resulted from exposure to noise trauma during service in his military occupational specialty (MOS) of fabric repair chief. The Board acknowledges that by virtue of his reported duties in his MOS he was likely exposed to some hazardous noise in service. The Veteran's service treatment records (STRs) are silent regarding a right ear hearing loss disability. On July 1970 service entrance examination, audiometry showed that puretone thresholds for the right ear, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 5 N/A 20 Whispered voice testing was not noted. In a contemporaneous report of medical history, he denied ear trouble, running ears, or hearing loss. On July 1975 service separation examination, audiometry showed that puretone thresholds for the right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 20 Whispered voice testing was not noted. On June 2013 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ), audiometry showed that puretone thresholds for the right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 60 65 Speech discrimination testing revealed that right ear speech discrimination was 92 percent correct. The audiologist noted that electronic hearing testing conducted during the Veteran's discharge medical examination revealed normal hearing in the right ear and opined that the current right ear hearing loss is less likely than not caused by or the result of noise exposure in service. The Veteran reported that he wore earplugs consistently when he worked around loud machinery in his MOS. After discharge, he worked around loud laundry machinery noise (and wore earplugs) at the Marine Corps Base. No other occupational or recreational noise exposure was reported. At the July 2016 Board hearing, the Veteran (with his representative's assistance) testified that in his MOS of fabric repair chief, he was constantly exposed to noise all day long. (He wore earplugs in both ears most of the time but sometimes did not wear them.) He also stated that he had (rifle and grenades) training [in service]. After service, he was a park ranger (where his duties were to inspect the campground, collect fees on the campus and inform others of emergencies) and a maintenance worker. He was not exposed to much noise in his postservice occupations. He also submitted a November 2019 study from the Journal of Neuroscience and specifically referred to the last paragraph ("The present results contradict these fundamental assumptions by showing that reversibility of noise-induced threshold shifts masks progressive underlying neuropathology that likely has profound longterm consequences on auditory processing.") in noting its direct contradiction to the 2005 Institute of Medicine (IOM) report ("Lack of delayed threshold shifts after noise has been taken as evidence that delayed effects of noise do not occur.") On November 2017 Hearing Loss and Tinnitus DBQ, audiometry showed that puretone thresholds for the right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 55 55 Speech discrimination testing revealed 96 percent correct right ear speech discrimination. The audiologist did not opine whether the right ear hearing loss was related to service. On March 2019 Hearing Loss and Tinnitus DBQ, audiometry showed that puretone thresholds for the right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 55 65 75 Speech discrimination testing revealed 92 percent correct right ear speech discrimination. The Veteran reported that he was exposed to a significant amount from gun fire, grenades, generators, sewing machines, tanks, and diesel engines in service. After discharge, he wore earplugs when he worked as a laundry machine operator for 3 years and was exposed to loud noise from large industrial machines. No postservice recreational noise exposure was reported. The audiologist cited to the Noise and Military Service Implications of Hearing Loss and Tinnitus (2006) article (stating that there is little evidence to address if noise exposure can lead to delayed onset of hearing loss) and opined that it is less likely than not that his right ear hearing loss is related to military noise exposure. She identified his postservice occupation in a loud industrial laundry room for 3 years and diabetes (a June 2008 National Institutes of Health (NIH) study states that diabetes may lead to hearing loss by damaging the nerves and blood vessels of the inner ear) as alternative etiologies for his right ear hearing loss. In a May 2020 Medical Opinion DBQ based on review of the record, the consulting audiologist opined that it is less likely than not that his right ear hearing loss was caused by or a result of military noise exposure. He stated that a single event on any particular day postservice would be equally more likely than military noise to cause the Veteran's current right ear hearing loss. Without reference to daily audiograms, pinpointing the specific date on which the hearing loss began would be purely speculative. He stated that if the hearing loss was indeed caused by military noise exposure, it would have been present in military service (the Veteran did not have right ear hearing loss upon discharge). He based his rationale on the 2005 IOM longitudinal study (which found that the most profound auditory effects of noise exposure occur immediately following exposure). Under compulsion to provide a nonservice-related etiology, he identified natural aging as the alternative etiology for the right ear hearing loss. The Board's November 2020 remand pointed out that the May 2020 consulting audiologist's opinion (Veteran's right ear hearing loss is not related to service because his hearing was normal at separation.) was inadequate for rating purposes and failed, once again, to discuss the medical literature the Veteran submitted at the July 2016 videoconference hearing. On November 2020 Hearing Loss and Tinnitus DBQ, audiometry showed that puretone thresholds for the right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 50 75 75 Speech discrimination testing revealed that right ear speech discrimination was 88 percent correct. The Veteran reported that he worked with loud laundry machines for 28 years postservice at a Marine Corps Base. Postservice recreational noise exposure included hunting with hearing protection. Medical literature that the Veteran submitted at the July 2016 hearing was not yet scanned into the claims file, so a medical opinion was not provided at this exam. In a January 2021 Medical Addendum opinion based on review of the record (including the medical literature that the Veteran submitted at the July 2016 hearing), the consulting audiologist stated that since the medical literature was an animal study on mice, it cannot be accurately or predictably applied to the human population. Additionally, the study addressed "difficulties hearing in noisy environments, tinnitus, hyperacusis, and other perceptual anomalies" and presumed that "progressive underlying neuropathology...likely has profound longterm consequences on auditory processing." The audiologist stated that the study did not address the delayed effects of noise on peripheral hearing loss (which is the basis of the Veteran's disability claim), so the study did not provide additional support for the disability claim. She cited to the 2006 IOM study, Noise and Military Service: Implications for Hearing Loss and Tinnitus (stating that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure and that based on IOM's current understanding of auditory physiology a prolonged delay in the onset of noise induced hearing loss was "unlikely") to support her opinion that it is less likely as not (less than 50% probability) that the current right ear hearing loss was caused by or a result of military noise exposure. She identified diabetes as the alternative etiology (per the NIH, hearing loss is linked to diabetes due to damage to the blood vessels and nerve fibers of the inner ear). At the outset, the Board finds that the January 2021 advisory medical opinion is substantially compliant with the Board's remand instructions and that the evidence is now adequate for rating purposes. As it is established that the Veteran has a current diagnosis of right ear hearing loss disability and that he was exposed to loud noise in service, what remains necessary to substantiate this claim is competent evidence that the hearing loss is etiologically related to his service/noise trauma therein. See Shedden, 381 F.3d at 1167. The evidence does not show, and it is not alleged, that a right ear hearing loss disability was manifested in service. The Veteran's STRs, including his July 1975 service separation examination report, are silent for complaints, treatment, findings, or diagnosis pertaining to hearing loss. Likewise, a right ear hearing loss disability is not shown to have been manifested within a year following the Veteran's separation from service, nor is postservice continuity of sensorineural hearing loss shown. While the Veteran may be competent to report a perception of a reduction of hearing acuity, he is not competent to establish by his accounts of remote perceptions that he has had continuity of a hearing loss disability since service; under governing regulation (38 C.F.R. § 3.385) hearing loss disability must be established by specified audiometry. Right ear hearing loss was initially diagnosed by such audiometry in June 2013 (38 years after the Veteran's separation from service). Accordingly, service connection for right ear hearing loss based on continuity under 38 C.F.R. § 3.303(b) is not warranted. In the absence of evidence of onset in service and continuity since, whether a current right ear hearing loss disability may be related to remote service/events therein is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. It requires medical expertise. The Veteran is a layperson, and his own opinion is not competent evidence in the matter. [The Board notes that multiple medical opinions were inadequate for rating purposes (either because the June 2013/March 2019/May 2020 examiners based their (negative nexus opinion to service) on normal entrance and separation examinations or because the audiologist did not provide an opinion (as on November 2017)). Their findings are not probative evidence in this matter.] The only competent and fully adequate medical opinion in this matter is found in the report of the November 2020 examination with the January 2021 addendum opinion. The January 2021 consulting audiologist opined that the Veteran's right ear hearing loss is less likely than not related to service. She applied her medical expertise to the specific circumstances in this case, cited to supporting medical principles/medical literature (2006 IOM study), and included adequate rationale for the conclusion reached. She noted that the medical literature (submitted by the Veteran at the July 2016 hearing) was not pertinent (and offered no additional support) to the right ear hearing loss claim. Instead, she cited to a NIH study in identifying diabetes as an alternative etiology. (The Board observes that history elicited on the November 2020 examination also identified other nonservice-related possible etiological factors for the right ear hearing loss, which the examiner did not comment on, i.e., the Veteran's long-term postservice occupation working with loud laundry machines for 28 years and some postservice recreational noise exposure from hunting.) The Veteran has not presented an adequate (equally or more probative) medical opinion or medical treatise evidence to the contrary. Considering the foregoing, the preponderance of the evidence is against the claim of service connection for right ear hearing loss. Accordingly, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chu, 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.