Citation Nr: 21027984 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-22 682 DATE: May 10, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran has a bilateral hearing loss that qualifies as a disability for VA compensation purposes; however, it is not shown to be causally or etiologically related to service. CONCLUSION OF LAW The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1967 to January 1969, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. The issue on appeal was previously before the Board in January 2019 and September 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. On both occasions, after taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss. The Veteran seeks to establish service connection for bilateral hearing loss. He contends that his hearing loss is due to in-service acoustic trauma, specifically his exposure to heavy artillery fire and other noise during his time as an infantryman in Vietnam without adequate ear protection. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, including sensorineural hearing loss, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is no dispute that the Veteran has a current bilateral hearing loss disability as defined by VA. The report of an April 2013 VA audiometric examination clearly reflects, among other things, that he has auditory thresholds in excess of 40 decibels at 3000 and 4000 Hertz in his right ear, and auditory thresholds in excess of 40 decibels at 2000, 3000, and 4000 Hertz in his left ear. The report also reflects Maryland CNC speech recognition scores of 92 percent in the right ear and 90 percent in the left. Nor is there any dispute that the Veteran was exposed to hazardous noise during service. He has reported that his military occupational specialty exposed him to hazardous noise, including artillery fire, and his statements in that regard are wholly consistent with the circumstances, conditions, and hardships of his combat service. As to the nexus, or link, between the Veteran's currently shown disability and service, the Board notes, as an initial matter, that the record is devoid of any medical opinion evidence linking his hearing loss to service, to include in-service noise exposure. Additionally, although he reported in a January 2013 statement that his hearing loss began on active duty and had gradually worsened since, his assertions as to in-service onset are contradicted and outweighed by the report of his December 1968 service separation examination, which shows that he expressly denied having, or have ever had, hearing loss at that time. In the absence of credible evidence of continuity of symptoms since service, or evidence otherwise showing that the Veteran has the requisite training to proffer medical opinions, his own assertions to the effect that his current hearing loss is related to service cannot serve to establish, on their own, a nexus to service. Jandreau, supra. As such, competent medical opinion evidence is required to decide the claim. The Veteran was first afforded a VA examination in connection with his bilateral hearing loss claim in April 2013. Regarding etiology, the April 2013 VA examiner found that it was less than 50 percent likely that the Veteran's hearing loss was caused by or a result of an event in military service. In support of that opinion, the examiner noted, in part, that the Veteran's service induction and separation examinations indicated that his hearing was within normal limits, bilaterally, and that there was "not a significant change in his hearing from induction to separation." In its January 2019 remand, the Board found the April 2013 VA opinion to be inadequate as it relied on the absence of documented in-service bilateral hearing loss as the basis of a negative etiological opinion. Hensley v. Brown, 5 Vet. App. 155 (1993). As such, a second medical opinion was sought and obtained in November 2019. That opinion also found no nexus to service. However, the opining audiologist relied, in part, on a 2006 Institute of Medicine (IOM) report for the proposition that "based on current understanding of pathology of the auditory system . . . a prolonged delay in the onset of noise-induced hearing loss [is] 'unlikely.'" In its September 2020 remand, the Board found that it was unclear whether the November 2019 VA examiner considered the limitations of the 2006 IOM report (as discussed by the United States Court of Appeals for Veterans Claims in McCray v. Wilkie, 31 Vet. App. 243 (2019). The Board also noted that the Veteran's representative had cited medical articles from the Journal of Neuroscience in an August 2020 brief that had not been considered by an examiner. Accordingly, the Board remanded the case again for an addendum opinion. Thereafter, an addendum opinion was obtained in February 2021. As the prior examiners had, the new examiner also opined that it was less than 50 percent probable that the Veteran's current bilateral hearing loss was related to his in-service noise exposure. The audiologist noted the Veteran's conceded noise exposure during service, and acknowledged the limitations of the IOM study which found, in part, that "[t]here 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." Despite the acknowledged limitations of the study, the examiner found that, "on an as likely as not basis" the study supported a finding that delayed onset hearing loss was "less likely." The examiner also reviewed and acknowledged the Journal of Neuroscience article submitted by the Veteran's representative, which the examiner found to be "informative" but "not relevant in this case." The examiner explained that in order to be relevant, noise damage would have to be proven, and that in the Veteran's case it was not. In that regard, the examiner noted that "[t]here was no complaint, diagnosis or treatment for hearing loss in the service and no temporary hearing loss suggesting temporary loss." The examiner also noted that there was no significant decrease in hearing acuity when comparing the service separation examination to the entrance examination, and that the Department of Defense's criteria for standard threshold shift (STS) had not been met. The Board finds that the February 2021 VA examiner's opinion is entitled to significant probative weight inasmuch as it considered all of the pertinent evidence of record, to include the Veteran's contentions, and provided a detailed rationale for the conclusions reached, relying on and citing to the records reviewed. In short, the examiner offered a clear conclusion with supporting data and a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). Notably, there are no medical opinions to the contrary. In reaching this determination, the Board acknowledges that the February 2021 VA examiner relied, in part, on the 2006 IOM report cited in McCray. In so doing, however, the examiner appropriately acknowledged the report's limitations, noting its finding that although "definitive" studies had not been performed, based on available anatomical and physiological data on the recovery process following noise exposure, "it is unlikely that such delayed effects occur." In other words, the examiner acknowledged that although the IOM did not rule out the possibility that delayed-onset hearing loss might exist, it found, based on current knowledge, it was unlikely that such delayed effects occur. The Board is satisfied with the examiner's assessment. In light of the foregoing, the Board must find that the Veteran's bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of separation from active duty, and that continuity of symptoms is not shown. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.