Citation Nr: 21027632 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-09 198A DATE: May 6, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The most probative evidence of record does not show that the Veteran's hearing loss is at least as likely as not the result of, due to, or aggravated by service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Air Force from October 1967 to September 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). Subsequently, in a February 2015 rating decision, the regional office granted service connection for left ear hearing loss. Thus, only the matter of entitlement to service connection for right ear hearing loss remains on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In June 2018, October 2019, and February 2021, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. As noted in the February 2021 Board remand, the Veteran initially requested a Board hearing in his March 2014 VA Form 9, but withdrew this request in an April 2018 Statement. Accordingly, his hearing request was withdrawn. See 38 C.F.R. § 20.704(e). A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's February 2021 remand directed the RO to obtain an addendum opinion addressing the Veteran's additional contentions. The Veteran submitted a May 2015 Journal of Neuroscience article discussing traumatic noise exposure and its effect on age-related hearing loss. An opinion was received in March 2021 that sufficiently addresses the issue, as discussed below. As such, the Board finds substantial compliance with its remand directives has been achieved. Id. at 271. Service Connection 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). Certain chronic diseases, such as sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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 for which service connection may be granted 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. 1. Entitlement to service connection for right ear hearing loss The Veteran contends he is entitled to service connection for right ear hearing loss. He asserts his hearing loss is the result of hazardous noise exposure as an aircraft mechanic during his military service. The Veteran also reports exposure to weapons fire, vehicles, firetrucks, aircraft, bombs, and explosives on a regular basis while serving in the Republic of Vietnam. The question for the Board 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 hearing loss of the right ear and evidence shows that hazardous noise exposure occurred in service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of hearing loss began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's most recent audiological evaluation in March 2021, reveals a hearing acuity in both ears meets the threshold requirements of a VA hearing loss disability. See 38 C.F.R. § 3.385. Therefore, the first element of service connection requiring a diagnosis is met. Military personnel records confirm the Veteran's military occupational specialty (MOS) was that of aircraft maintenance technician and crew chief, with confirmed service in Vietnam. It has been conceded the Veteran was exposed to hazardous noise as a result of the duties and responsibilities assigned his MOS. Therefore, the evidence favors a finding of an in-service event and the second element of service connection is met. As to final element required to establish service connection, the Veteran has been provided several VA audiological examinations addressing whether a nexus relationship exists. VA examiners declined to provide the Veteran with a positive nexus opinion for his right ear hearing loss at his January 2012, November 2014, January 2020, and March 2021 examinations. Following the Board's February 2021 remand, an examiner was asked to address medical evidence submitted by the Veteran in December 2020. A 2015 article from the Journal of Neuroscience theorizes that a single synaptopathic exposure can accelerate cochlear aging, this the Veteran asserts his in-service noise exposure caused or exacerbated his hearing loss with age. However, the examiner explains there is no definitive evidence accompanying the postulations with regard to timeline and human subjects. She notes the study's length only included post-noise exposure of 112 weeks or less compared to its controls. She compares the Veteran's twenty years of service with no objective evidence of threshold shift during service or at his separation to the limited timeline of the study. She states that the 2015 article does not make any definitive commentary on human anatomy and physiology regarding timeline, expectations, and is not substantiated by a significant amount peer-reviewed research to support their comments regarding their findings on mice. The examiner also opines a delayed onset of the Veteran's symptoms is not consistent with the majority of research and textbooks regarding noise-exposure and hearing loss. Research studies have shown that hazardous noise exposure has an immediate effect on hearing and does not have delayed onset nor is it progressive or cumulative. She notes that while the Institute of Medicine's 2005 study indicates definitive studies have no been performed, based on anatomical and physiological data available on the recover process following noise exposure, it is unlikely that such delayed effects occur. The examiner cites several additional articles supporting her conclusion and states, "The above articles are currently still considered the gold standard as they represent a small sampling of an overwhelming body of evidence to support noise induced hearing loss as manifesting immediately or soon after noise exposure." Based on the above, the examiner concluded the Veteran's right ear hearing loss is less likely than not related to his military service. Although the Board's remand instructed the examiner to opine as to whether the Veteran's military service aggravated a hearing loss disability that may have pre-existed service, the examiner explained that the Veteran's entrance examination had likely been conducted in American Standards Association (ASA) format, as was practice prior to 1969. The Board notes, when interpreting audiometric data from service treatment records (STRs), it is important to note that Service Departments changed from using ASA standards, to using International Standards Organization American National Standards Institute (ISO-ANSI) standards when providing audiograms beginning at some point between approximately January 1, 1967 and December 31, 1970, however, the conversion date was not consistent between all branches of the Armed Forces. The examiner notes a conversion of the Veteran's entrance audiogram to the ANSI standard reveals no significant threshold shift in his hearing acuity for either ear, at any frequency, spanning his twenty years in service. She concluded the Veteran did not have hearing loss that pre-existed his military service. Further, the 2021 VA examiner noted the Veteran experienced post-service noise exposure and other intercurrent causes that are heavily contributed to his hearing loss. The examiner notes that the Veteran received radiation treatment to his neck in 2012 to treat throat cancer. She explains that radiation to regions with a proximity to the auditory system, such as the head and neck, is associated with hearing loss. Additionally, she notes the Veteran's post-service noise exposure in facilities maintenance, such as riding mowers, loading bridges, and terminals cannot be ruled out as a contributing factor. The Board finds the 2021 VA examiner's opinion to be highly probative and affords it significant weight. The examiner provides an explanation that contains clear conclusions with supporting medical data addressing the Veteran's contentions, and is based on an accurate medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Taken together, several VA examiners have opined that the Veteran's hearing loss is less likely as not related to an in-service injury, event, or disease, including hazardous noise exposure and the Board has given the cumulative medical evidence probative weight. The Veteran's post-service treatment records show the Veteran did not have hearing loss that meets the criteria to qualify as a VA disability until January 2012, decades following his separation from service. While the Veteran is competent to report experiencing symptoms since service, he is not competent to provide a diagnosis in this case or determine that the symptoms were manifestations of sensorineural hearing loss from noise exposure. The issue is medically complex, as it requires knowledge of interaction of the nervous and auditory systems, diagnostic medical testing, and human anatomy of the ear. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). 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 medical evidence. As a nexus relationship between the Veteran's hearing loss and his military service has not been established, the claim for service connection must be denied. The benefit of the doubt doctrine is not for application as there is no contradictory medical evidence favoring a nexus, thus the evidence weighs against the claim. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.