Citation Nr: 21028743 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 09-47 896 DATE: May 11, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is not attributable to service and was not manifest within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to May 1969 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2010, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In May 2017, November 2017, and May 2020 the Board remanded the claim for further development. 1. Service connection for bilateral hearing loss is denied. VA provides disability compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a 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). Additionally, for certain chronic diseases, including sensorineural hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In the 1960s, the military changed its standard of measuring hearing acuity, replacing the American Standards Association (ASA) units with the current International Standards Organization/American National Standards Institute (ISO/ANSI) units. Prior to January 1, 1967, service departments are assumed to have used ASA units. Service departments are assumed to have changed to ISO/ANSI units after December 31, 1970. For the period between January 1, 1967, and December 31, 1970, VA is to consider the data under both the ASA and ISO/ANSI standards unless it is clearly indicated which units were used. To convert audiometric data from the ASA standards to the ISO/ANSI standards, the following decibel amounts will be added to the recorded data: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 5 15 10 10 10 5 10 10 Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In determining whether there exists hearing loss for VA purposes, the Board is bound by the applicable law and regulations to mechanically compare the requirements of 38 C.F.R. § 3.385 to the numeric designations from audiometric test results. The Veteran has current bilateral hearing loss for VA purposes, documented, for example, on VA examination in December 2020. On his July 1966 service entrance examination, hearing loss for VA purposes was not shown, even when converting the audiometric data from ASA to ISO/ANSI standards, as depicted in the parentheticals below. HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 0 (10) 0 (10) 5 (10) LEFT 20 (35) 0 (10) 0 (10) 0 (10) 20 (25) The Veteran raised no pertinent complaints on the accompanying Report of Medical History on entry into service. Subsequent service treatment records are also silent for relevant documentation. In response to a Board remand, a November 2019 VA examiner reviewed an undated audio graph contained within the service treatment records, and determined that it was consistent with and represented the numerical audiometric findings documented on the July 1966 service entrance examination. On his April 1969 separation examination, no abnormalities of the ears were found, and hearing loss for VA purposes was not documented on audiometric testing, even considering the ASA to ISO/ANSI conversion, as depicted in the parentheticals below. HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) X 0 (5) LEFT 0 (15) 0 (10) 0 (10) X 0 (5) To the extent the Board found "some evidence" of hearing loss in the Veteran's service treatment records in prior remands, the records do not depict hearing loss for VA purposes. However, it has been established the Veteran was exposed to excessive noise during the performance of the duties associated with his military occupational specialty. Specifically, he was exposed to jet noise and artillery fire as a combat engineer. He was also exposed to extreme noise during the Tet offensive in 1968, when an ammunition dump was blown up and the force of the explosion knocked him out of his bed. Additionally, he was exposed to excessive noise from mortar fire, jackhammers, and from driving a five-ton bridge truck on which a .50 caliber machine gun was mounted. On the matter of the etiology of the disability, the record contains numerous VA examination reports. VA audiological examinations were conducted in December 1993, February 1995, and June 2008, and while hearing loss for VA purposes was shown, an opinion addressing the etiology of the disability was not provided by the examiners. In a May 2010 VA addendum opinion, the June 2008 VA examiner reviewed the Veteran's service treatment records and her prior VA examination report. She noted audiometric findings on entry into service in July 1966, and on separation from service in April 1969. She discussed that the Veteran was exposed to excessive noise during military service, and also had a 30 year post-service history of occupational noise exposure while cutting wood for cabinet companies. She concluded that because the Veteran's hearing levels were within normal limits on separation from service, it was not likely that the current hearing loss was related to military service. On VA examination in May 2017, the examiner reviewed the claims file and examined the Veteran. She noted that he was exposed to excessive noise during the military, and was not provided with hearing protection. However, she opined that his current hearing loss was not at least as likely as not caused by military service, including noise exposure therein, given that his in-service audiograms were normal and did not indicate a significant threshold shift. In a December 2017 VA addendum opinion, the May 2017 VA examiner reiterated her conclusion that the current hearing loss was less likely than not incurred in or caused by service. She noted that hearing was normal bilaterally on the 1969 separation audiogram. All thresholds were zero decibels and were not significantly worse than the threshold measurements obtained on entry into service. On VA examination in September 2019, the examiner reviewed the claims file and examined the Veteran. She opined that the current bilateral hearing loss was not at least as likely as not caused by or the result of military service. A comparison of the induction and separation audiograms indicated that no permanent positive threshold shift occurred in service. As such, she found it less likely than not that the Veteran's hearing loss was due to military noise exposure. In a November 2019 VA addendum opinion, the September 2019 VA examiner again reviewed the in-service audiograms, and determined that an undated audio graph contained in the service treatment records was consistent with and represented the numerical audiometric findings documented on the July 1966 service entrance examination. The examiner reiterated that the Veteran's bilateral hearing acuity was normal on both entry and separation from service. On VA examination in December 2020, the examiner reviewed the claims file and examined the Veteran. He noted that the Veteran was exposed to hazardous noise during military service, including from helicopters, artillery, bombs, combat fire, explosions, and military aircraft. He concluded, however, that the Veteran's hearing loss was not at least as likely as not caused by or a result of military service. There was no hearing loss at either enlistment or on military separation. In fact, a comparison of the audiograms actually indicated an improvement in hearing acuity on separation from military service. The examiner explained that there must be an indication of auditory damage in order to link the current hearing loss to military noise exposure, and such damage was not shown in the Veteran's case. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current bilateral hearing loss is related to the Veteran's active military service, or that a chronic disability was incurred in service. The Veteran was clearly exposed to acoustic trauma in service. However, the evidence does not show that hearing loss was then-present, or that the disability has been continuous since service. Sensorineural hearing loss was not found within one year of separation from service; rather, the evidence reflects that hearing loss was not shown until decades after service discharge. The medical opinion evidence is also persuasive. Numerous VA examiners have addressed the contentions of direct service connection, but opined that the Veteran's current bilateral hearing loss is not related to military service, including to noise exposure therein. They based their conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. They reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusions reached. To the extent the Board found inadequacies with aspects of the 2017 and 2019 VA examination reports in prior remands, those examination reports are not inadequate as a whole. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding, "even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains.") Moreover, the Board's decision here additionally relies on the December 2020 VA examination report, which has not been formerly characterized as inadequate. The Board has considered the medical literature cited by the Veteran's representative in the January 2021 brief, which generally addresses noise exposure and hearing loss. However, this evidence does not address the facts that are specific to this Veteran's particular case. As such, the Board finds that the information reflected in the submitted articles simply is not probative of the specific medical questions at issue in this appeal, and is outweighed by the professional opinions of the VA examiners, which are more detailed and focused on the particular circumstances at issue here. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). The only other evidence to the contrary of the VA examiner's opinion is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as sensorineural hearing loss. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). (Continued on the next page) In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.