Citation Nr: 21027235 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-05 799A DATE: May 5, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's right ear hearing loss began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marines from June 1957 to September 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board issued a remand in February 2021 instructing the RO to obtain an addendum opinion to determine the nature and etiology of the Veteran's right ear hearing loss. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained a March 2021 VA medical opinion. The Board finds the RO substantially complied with the February 2021 remand directives. Entitlement to service connection for right ear hearing loss. During the September 2019 Board hearing, the Veteran testified that the July 2017 rating decision denied his claim based on the findings of the July 2017 VA examination. He argued that the medical opinion relied on the lack of a significant threshold shift while the Veteran was in service. However, a significant threshold shift was not defined, and the examiner relied on a 2006 study which found delayed onset hearing loss was unlikely to occur. Further, the CDC examined the 2006 study and found contradictory statements. More specifically, the CDC stated that definitive studies to address the issue of delayed onset hearing loss have not been performed. The Veteran's representative further argued that while the 2017 examiner referenced an American College of Occupational and Environmental medicine report (ACOE), the ACOE issued a new report in September 2018 that highlighted new medical evidence and noted that they found that continuous noise exposure throughout the work day or over years was more damaging than interrupted exposure. In this case, the Veteran stated that his many years of noise exposure in service without hearing protection was the cause of his right ear hearing loss. The Veteran submitted medical articles in support of his claim. Service connection may be granted for a 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). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of a 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. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection is presumed when the chronic disease is noted on the Veteran's service treatment records or manifested to a degree of 10 percent within one year of discharge from service. 38 C.F.R. § 3.307(a)(3). For VA purposes, impaired hearing is considered disabling 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. Service treatment records (STR) indicate no complaints, treatment, or diagnosis of right ear hearing loss. However, the Veteran's military occupational specialty (MOS) was airplane pilot. This MOS would have likely exposed the Veteran to hazardous noise. In addition, post-service treatment records show the Veteran has a current diagnosis of a right ear hearing loss. The Veteran was afforded a VA examination in June 2017 to determine the nature and etiology of his hearing loss. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 30 40 45 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The VA examiner reported the right ear to have sensorineural hearing loss. The examiner opined it was less likely than not that the Veteran's military noise exposure caused his right ear hearing loss. The examiner stated that hazardous noise exposure while in service was conceded. The Veteran's report of noise exposure while in service was taken into consideration in rendering this opinion. Electronic hearing testing conducted at enlistment and during services showed the Veteran did not have a significant threshold shift beyond normal measurement variability while in service in the right ear. Therefore, the evidence of record showed the Veteran did not have a hearing injury while in service in the right ear. Evidence in this case clearly and convincingly showed the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. It was also important to know behavioral measurements always involve some degree of variability and that such differences do not constitute injuries. A determination of significant threshold shift beyond normal measurement variability caused by or a result of noise exposure while in service was made by the expert in area (Audiologist) on a case by case basis after a careful review of all evidence. Therefore, the evidence of record clearly and convincingly rebuts, if so stated, the Veteran's subjective report of hearing loss while in service in the right ear. The Board found that remand was necessary to obtain an addendum opinion that considered the medical articles submitted by the Veteran. However, the Veteran's right ear was also tested during an evaluation with his left ear hearing loss in October 2020. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 55 55 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The VA examiner reported the right ear to have sensorineural hearing loss. The examiner opined it was less likely than not that the Veteran's military noise exposure caused his right ear hearing loss. The examiner stated there was no significant permanent shift in hearing thresholds in the right ear beyond test variability from entrance to separation for this Veteran, which was objective evidence of no permanent auditory damage on active duty from conceded noise. There was no report of complaint/treatment for hearing decrease in STR's or at separation and no evidence of a pure tone significant threshold shift on any of the numerous audiograms reviewed. Although noise exposure was conceded and the relationship of noise exposure, auditory damage and hearing loss was well-established, there must be a nexus of auditory damage to relate current hearing loss to military noise exposure and not another etiology. The evidence was against the nexus in this case. Therefore, it is less likely than not that the Veteran's right hearing loss is caused by or the result of military noise exposure. Like the previous medical opinion, this opinion did not address all the directives of the Board's remand. Specifically, the Board instructed in its April 2020 Board remand that the VA examiner should address medical articles the Veteran submitted in support of his service connection claim. Instead, the VA examiner who authored the October 2020 opinion stated that, "[t]he medical articles/and multiple audiograms submitted were reviewed and there was no significant threshold shift noted on any of the hearing tests from 1956 through 1984. There was no measurable right-sided auditory damage noted for this Veteran during his military service." Therefore, another attempt was made to obtain an addendum opinion addressing all the directives. A March 2021 addendum opinion was obtained and the examiner opined that it was less likely than not that the Veteran's military noise exposure caused his right ear hearing loss. The examiner wrote that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which was objective evidence of no permanent auditory damage on active duty from conceded noise. Per 2021the remand, while "the absence of in-service evidence of a hearing loss disability was not always fatal to a service connection claim, and therefore, a lack of in-service notations related to hearing loss cannot be used as the sole evidence that the Veteran's current right hearing loss was not etiologically related to his active service", other evidence, such as the numerous studies outlined in the 2017 C&P exam indicated that a delayed onset of hearing loss from noise exposure was not likely. The examiner addressed the medical articles the Veteran submitted in support of his claim. The examiner wrote that the Veteran submitted the Occupational Noise Induced Hearing loss Guidance statement from ACOEM, which does not provide any new evidence, rather an outline of the current studies, how to implement and manage a hearing conservation program, and possible outcomes if threshold shifts are observed. He also submitted an excerpt from Noise and Military Service (2006), which indicated no longitudinal studies in humans to indicate if noise exposure can cause late onset hearing loss- only animal studies- which was the statement from Institute of Medicine. The examiner also wrote that the Institute of Medicine was an independent, non-governmental, nonprofit organization with a mandate to provide the government and others with advice, counsel, and independent research on major topics in healthcare that was established in 1970 out of the National Academy of Sciences. The review the IOM did in 2006 was to review evidence in a non-biased way for examiners attempting to separate hearing loss related to noise from hearing loss associated to other factors that may come after active duty/noise exposure. The IOM indicated that "No longitudinal studies have examined patterns of hearing loss over time in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of the noise exposure. The committee's understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely" (IOM, 2006 p. 203). The examiner also wrote a study was completed by Fernandez et al (2015). In this study, mice were exposed to high levels of noise, and then evaluated for hearing loss using auditory brainstem responses and otoacoustic emissions, then cochleae were evaluated for damage postmortem. Researchers did find differences in the fine inner ear structures of mice that were exposed to high levels of sounds, versus those that were not. They cited their own 2006 study to say that noise exposure and aging do seems to have a relationship, but it was unclear what it is. According to Shanks et al (2008), "whether animals can be used to predict human responses to drugs, and other chemicals is apparently a contentious issue. However, when one empirically analyzes animal models using scientific tools, they fall far short of being able to predict human responses." The examiner also wrote a study in Demetrius (2005) explained further that "Although mice share genes, organ systems and systemic physiology with humans, the two species differ significantly in terms of morphometry, physiology and life history. Humans are about 3,000 times larger than mice, and this size difference imposes constraints on physiology and life history with significant effects on the species' ability to adapt to environmental conditions... any efforts to exploit mouse systems to elucidate human ageing or disease must take into account that vast differences in the metabolic stability of the cells within these animals. These differences derive from the contrasting evolutionary history of the species as determined by their environmental conditions and resource constraints that these conditions induce. An understanding of this history, and its signature at the cellular level- the metabolic stability, or robustness of the cellular regulatory networks are this crucial in elucidating human ageing and disease pathogenesis from mouse models." In short, generalizing findings from rodent studies to humans is fraught with difficulties and at best, should be undertaken with great caution. The examiner also wrote a study in Kujawa (2006) have also stated that "hearing losses in humans are multifactorial with contributions from, and potential interactions among numerous variables that can shape final outcomes." Any noise exposure through the veteran's life, including traffic noise, smoke alarms, etc. would have to be considered in addition to any military noise exposure. Many factors contribute to age related hearing loss including genetic predisposition and medical conditions. In this case, the examiner concluded by stating the Veteran's hearing in the right ear was well within the normal range, especially in the high frequencies that are the most susceptible to hearing loss from noise with thresholds of 0 to 5 dB from 2000-6000 Hz, as of 1984, which was 22 years post separation from active duty. Based on evidence discussed, the evidence was against a nexus in this case, therefore it was less likely than not that the hearing loss was related to military noise exposure. The Board acknowledges the Veteran's assertion that his right ear hearing loss was related to his military service. However, a lay person is not considered competent to medically attribute right ear hearing loss to hazardous noise in service as doing so to requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinkseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the competent medical evidence of record answered the question and did not support a causal relationship between the Veteran's right ear hearing loss and military service. Overall, the evidence of record consistently found that the Veteran's right ear hearing loss did not manifest within one year of service, start in service, or was related to service. (Continued on the next page) Accordingly, the criteria for entitlement to service connection for right ear hearing loss have not been established, either through medical or lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for right ear hearing loss, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.