Citation Nr: 21028740 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-31 314 DATE: May 11, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2014 by a Department of Veterans Affairs (VA) Regional Office. The claim was remanded in October 2018 for additional development and it now returns to the Board for appellate review. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system like hearing loss, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above 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. Thresholds for normal hearing are between zero and 20 decibels, and higher thresholds show some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). 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, 53 (1990). The Veteran contends that his bilateral hearing loss is due to exposure to loud noises during service. Specifically, he was exposed to noise from artillery rounds, grenades, and trucks as part of his duties as an armor supply specialist in an artillery unit. As for an in-service injury, disease, or incident, the Board finds the Veteran's reports of in-service noise exposure are consistent with his military occupational specialty of ordinance supply specialist. As evidenced by the May 2014 and July 2020 VA examination reports, the Veteran has a current diagnosis of bilateral hearing loss, a defined by 38 C.F.R. § 3.385. Thus, the remaining inquiry is whether the Veteran's current bilateral hearing loss is related to his military service. The Veteran's service treatment records (STRs) are silent as to complaint, treatment, or diagnosis of hearing loss. Audiological examinations from the Veteran's March 1969 entrance examination and November 1970 separation examination are associated with the record. The March 1969 examination reveals findings of 0, 0, 0, and 45 in the left ear and 0, 0, 0, and 25 in the right ear at 500, 1000, 2000, and 4000 Hz, respectively. The November 1970 separation examination reveal findings of 5, 5, 10, and 10 for the left ear and 5, 5, 5, and 5 for the right ear at 500, 1000, 3000, and 4000 Hz, respectively. Post-service audiological examinations reveal that the Veteran first had hearing loss in March 1979. The Veteran was afforded a VA examination in May 2014 and was diagnosed with bilateral hearing loss. At the time, the examiner opined that the hearing loss was less likely than not related to service because the Veteran had normal hearing bilaterally at separation and there was no significant threshold shift noted between the entrance and separation examinations. The examiner also considered the contributions from the Veteran's occupational noise exposure, to include work as a forklift operator, heavy equipment operator and machine operator, as well as aging effects. Based on such evidence, the examiner found that there is no basis to conclude that hearing loss is causally related to military service, including noise exposure. However, in the October 2018 remand, the Board found the opinion insufficient to determine whether service connection for bilateral hearing loss was warranted. Notably, the Veteran had in-service audiological evaluations in May 1969 and November 1970, at which time, the auditory thresholds were recorded. However, it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American Nationals Standards Institute (ISO-ANSI) units. In accordance with updated policy for interpreting audiometric data, for service audiological evaluations conducted prior to January 1, 1967, VA protocol is to presume the ASA standard was used. For Audiological evaluations conducted between January 1, 1967 and December 31, 1970, VA protocol is to consider the data under both ASA and ISO-ANSI standards, relying on the unit measurement most favorable to the Veteran's appeal. For service audiological evaluations conducted after December 31, 1970, VA protocol is to assume the ISO-ANSI standard was used. Thus, since it is unclear as to whether the examiner considered the audiometric data under both ASA and ISO-ANSI standards, the finding that the Veteran had no permanent positive threshold shifts may be based on an inaccurate factual premise. Thereafter, an addendum opinion was obtained in July 2019, at which time the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or a result of his military acoustic exposures. In this regard, the examiner noted the March 1969 and November 1970 audiological examinations, in addition to twelve audiological examination undergone from March 1979 to May 2010. The examiner also noted that, at the time of the May 2014 VA examination, the Veteran reported that he was not engaged in combat, but he was exposed to artillery fire, grenades and truck noise without hearing protection. He also reported that, following separation from service, he was employed as a forklift operator, a heavy equipment operator and a machine operator, with mandatory hearing protection, and he owned a motorcycle for 4 years. In support of her opinion, the examiner provided that there is no need for consideration of ASA to ISO-ANSI conversion as the Veteran did not have an evaluation administered prior to October 1967. Additionally, a significant threshold shift did not occur between 1969 and 1970. Rather, the Veteran's left side hearing loss of 45 dB at 4000 in March 1969 recovered by the time of separation in 1971. Thus, if hearing is normal on discharge and there is no permanent significant threshold shift greater than normal measurement variability, there is no basis on which to conclude that current hearing loss is causally related to military service, to include noise exposure. Additionally, the examiner referenced a 2005 study by the Institute of Medicine which found that there is insufficient evidence to indicate the development of hearing loss years after military noise exposure. However, she noted that the theory is inconsistent with research regarding noise-induced hearing loss, such that studies have shown that noise exposure has an immediate effect on hearing, and it is usually temporary at first. Additionally, it usually takes many incidents of temporary noise-induced hearing loss before hearing loss becomes permanent. However, in the instant case, as hearing is normal on discharge and there is no permanent significant threshold shift greater than normal progression during military service, there is no nexus. The Veteran was afforded another VA examination in July 2020. At the time, a different VA examiner opined that the Veteran's hearing loss is less likely than not incurred in or related to service. The examiner provided that hearing loss related to noise exposure will happen at the time of exposure and is typically characterized by temporary threshold shifts in the higher frequencies. While temporary threshold shifts recover slightly or fully over time, repeated temporary threshold shifts typically worsen over time and become permanent with repeated exposure to noise. Significantly, the Veteran's hearing test at entry to service revealed hearing loss in the left ear at 4000 Hz, with all other thresholds within limits, bilaterally. Thus, if military noise exposure impacted his hearing, there would be a positive threshold shift, even in consideration of ASA to ISO-ANSI conversion. As the Veteran had normal thresholds at separation, the examiner found that there is no basis on which to conclude that a current hearing loss is related to military service. Noting the 2005 study from the Institute of Medicine, the examiner report that hearing loss, either temporary or permanent, typically occurs at the time of exposure and there is not sufficient evidence to suggest delayed post-exposure noise induced hearing loss is likely. In consideration of the reports that the Veteran had post-service occupational and recreational noise exposure from 1971 to 1978, without hearing protecting, and the first documented complaint of hearing loss was in March 1979, the Board agrees with the VA examiners of record in finding it most likely that the resulting hearing loss is related to occupational noise exposure or other post-service factors. Here, the Board affords great probative value to the July 2019 and July 2020 VA examiner's opinions as it reflects consideration of all relevant facts, specifically citing to service treatment records, post-service treatment records, and the Veteran's lay statements. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, the record does not contain a medical opinion to the contrary. In this regard, the Board had considered the Veteran's contention that his bilateral hearing loss is related to service. However, the Board affords his opinion less probative weight than that offered by the July 2019 and July 2020 VA examiners. It is well established that a layperson without medical training is not qualified to render medical opinions regarding the etiology of certain disorders. See 38 C.F.R. § 3.159(a)(1). In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, as the origin or cause of left ear hearing loss is not a simple question that can be determined based on mere personal observations by a lay person, the Veteran's lay testimony is not competent to establish a medical etiology or nexus. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. Here, it is not shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer such an opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Therefore, the Board affords his statements as to the etiology of his left ear hearing loss no probative weight. Furthermore, the Board finds the record does not demonstrate the presence of bilateral hearing loss within one year of the Veteran's separation from active duty. As noted above, audiometric examination at separation revealed normal hearing, and post-service audiological examination first indicate hearing loss in March 1979. The Veteran has not submitted any treatment records dated within the year after his discharge from service that show complaints of, treatment for, or a diagnosis of bilateral hearing loss. Therefore, the Board finds that presumptive service connection for bilateral hearing loss is not warranted. In conclusion, the Board finds that bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and such did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such 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 of entitlement to service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED