Citation Nr: 21028748 Decision Date: 05/12/21 Archive Date: 05/11/21 DOCKET NO. 15-23 939 DATE: May 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss did not initially manifest during or within one year of active service and is not otherwise related to active service, including the Veteran's noise exposure and acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1959 to October 1962. His claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2014 Department of Veterans Affairs (VA) rating decision. The Veteran testified in support of this claim during a video conference hearing held before the undersigned Veterans Law Judge in November 2018. The Board remanded this claim to the Agency of Original Jurisdiction (AOJ) in February 2019, August 2020 and January 2021. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral sensorineural hearing loss on a direct basis as related to in-service noise exposure and acoustic trauma while working with radio relay equipment as a radio relay operator. The preponderance of the evidence is against this claim. In written statements and during his hearing, the Veteran contended that this radio relay equipment produced squealing, high-pitched noises, to which he listened daily through headphones. Also, in setting up the equipment, it was like a hearing test; to ensure that everyone understood each other, they turned up the volume higher and higher to another frequency until it was okay. He further contended that, following his discharge from service, he sustained no acoustic trauma industrially or recreationally (worked as a heat treater throwing stuff in the fire, an inventory quality control inspector and manager at a grocery store, both primarily in an office, and in a kitchen appliance store putting glue on countertops, scraping it off and laminating, and played a lot of golf, all low noise environments); therefore, his service duties must have caused his hearing loss. The Veteran testified that he recalls first realizing how the in-service noise exposure was affecting his hearing. During the Berlin crisis, on his birthday, he and others were working on a field problem. He was at a relay station between two posts, setting up the radios by frequently adjusting the squelch, when they began fooling around, playing gags on each other. They knew that if they turned the squelch way up, it blasted one's ear, causing hearing loss for a couple of days; the other operator on the relay would send out a signal and, fooling around, turn it way up. That was the first time he noticed hearing loss, and they did it many times after that. The day before he got married in April 1962, however, it happened again, and it really hurt his ears. He couldn't hear anything the day of his wedding, but he did not report it to medical. He was told that, because he got hurt fooling around, he would get court-martialed. Instead, he went to a private hearing doctor in 1963, after service, and that doctor told him he had a damaged cochlear. He realized early on he had hearing loss (within a year of service), but he didn't report it to VA until 1990. Prior to that time, he wasn't aware of the services for which he was eligible as a veteran. The Veteran believes that, during service, he experienced a damaging level of noise, which caused temporary hearing loss from which he recovered for a substantial period of time; thereafter, however, the long-term effect of the damage (hearing loss) became evident. He has submitted medical literature in support of this claim, which he argues substantiates this belief, including: (1) a November 2009 Journal of Neuroscience article discussing a study conducted by Drs. Sharon G. Kujawa and M. Charles Liberman, titled "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise Induced Hearing Loss"; (2) a 2006 Institute of Medicine (IOM) report titled "Noise and Military Service - Implications for Hearing Loss and Tinnitus"; (3) a 2017 Journal of Otolaryngology Head & Neck Surgery review titled "Current insights in noise-induced hearing loss: a literature review of the underlying mechanism, pathophysiology, asymmetry, and management options"; (4) a 2015 Journal of Audiology & Otology review titled "Noise-Induced Neural Degeneration and Therapeutic Effect of Antioxidant Drugs"; (5) a 2011 abstract from the Journal of the Association for Research in Otolaryngology titled "Age-Related Primary Cochlear Neuronal Degeneration in Human Temporal Bones"; (6) a February 15, 2006 article from The Journal of Neuroscience titled "Acceleration of Age-Related Hearing Loss by Early Noise Exposure: Evidence of a Misspent Youth."; (7) a 2018 article from the Canadian Audiologist titled "Hidden versus Not-so-Hidden Hearing Loss"; and (8) an overview of tinnitus from the Mayo Clinic. According to the Veteran's testimony and written statements, these articles indicate that, up until 2002, in-service audiometric testing was inadequate to evaluate changes in hearing associated with military service. Normal hearing at separation means nothing. Even if one exposed to in-service noise temporarily has normal hearing post-exposure and on exit from service, his or her hearing has been damaged, resulting in degeneration of cochlear neurons. Noise-induced degeneration begins immediately after the exposure and progresses for several years after the degeneration. The Veteran argues that, at a young age, noise exposure resulting in temporary threshold shifts can exacerbate age-related hearing loss, accelerating when it initially manifests. The exposure causes "hidden hearing loss" by damaging the ribbon synapses, reducing speech perception in noise even when the pure tone thresholds are preserved. The Veteran has also submitted a written statement from his spouse, who he met in October 1961 and married in April 1962, in support of his assertions. According to this statement, she noticed he was hard of hearing from the time they met, as she often had to repeat herself. She recalls the Veteran seeing a doctor about his hearing after he left the Army, and that doctor told the Veteran the ringing in his ears was due to a defect in the cochlear. 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. To satisfy the three-element test for service connection, the evidence must show: (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). Service connection may be presumed for certain chronic conditions, including organic diseases of the nervous system, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of at least 10 percent within one year of the date of discharge from service. 38 U.S.C. §§ 1101, 1112(a), 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The question is therefore whether the Veteran currently has bilateral hearing loss that initially manifested during or within a year of active service or is otherwise related to active service, including any noise exposure and/or acoustic trauma. To meet VA's definition of hearing loss, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz must be 40 decibels or greater, or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz must be 26 decibels or greater, or the speech recognition scores using the Maryland CNC Test must be less than 94 percent. 38 C.F.R. § 3.385. Here, reports of VA hearing loss and tinnitus examinations conducted in May 2014 and November 2019, treatment records dated since 2013, and September 2020 and February 2021 VA addendum medical opinions establish that the Veteran currently has bilateral hearing loss as defined above. A private audiologist first diagnosed the Veteran with hearing loss in 2009, decades after service. That year, the Veteran also presented at VA for a hearing evaluation. He reported significant in-service noise exposure to radio equipment and difficulty hearing and tinnitus for the past 20 years (from approximately 1989, decades after surgery). A provider confirmed hearing loss that was not sufficiently severe as to warrant the issuance of hearing aids. In 2014, after a further worsening of the hearing, VA issued the Veteran hearing aids. During VA audiology treatment visits in 2014, the Veteran denied any ear trauma. The AOJ has nonetheless conceded that the Veteran sustained acoustic trauma in service. Based on the Veteran's military occupational specialty (MOS) of Radio Relay Operator, the AOJ has also conceded that the Veteran was exposed to noise during service, exposure that likely would have occurred secondary to the duties this MOS requires. Multiple medical professionals have addressed whether the Veteran's bilateral hearing loss is related to this noise exposure and/or the conceded acoustic trauma. For the reasons explained below, only the most recent is probative to this question. It is based on a review of the Veteran's file, medical history and pertinent literature, and the examiner's expertise as an audiologist, and is supported by clear, well-reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04; Prejean v. West, 13 Vet. App. 444, 448-49; Guerrieri v. Brown, 4 Vet. App. 467, 470-71. In May 2014, a VA examiner opined that the Veteran's hearing loss was less likely than not caused by or the result of in-service noise exposure, but his opinion is inadequate. It is based on a finding that the Veteran had normal hearing on separation. As the Board pointed out in its February 2019 Remand, this is insufficient rationale to support a negative nexus opinion. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service). In December 2018, a private physician opined that the Veteran's bilateral hearing loss was most likely caused by or a result of service-connected acoustic trauma. However, this succinct opinion, unsupported by rationale, too is inadequate. In November 2019 and September 2020, following two remands for more comprehensive addendum opinions, a VA examiner found the Veteran's bilateral hearing loss less likely than not caused by or the result of an in-service event. The examiner based this unfavorable opinion on a review of the claims file, the Veteran's service and medical history, her clinical expertise, a review of related literature and the Veteran's then present degree of hearing loss, but as the Board pointed out in its August 2020 and January 2021 Remands, these opinions are inadequate. The examiner's opinions are based, in part, on the absence of evidence of in-service acoustic trauma, which the AOJ has conceded, and according to the Veteran, one ignores pertinent and favorable conclusions from the 2006 IOM study, and does not contemplate the Veteran's assertions regarding the long-term consequences of noise damage and medical literature supporting that assertion; the other, which is based in part on a finding of significant occupational noise exposure, ignores the Veteran's most recent assertions that his work in kitchen cabinetry did not expose him to noise and that he never worked with wood. The one probative opinion, provided in February 2012, rules out a relationship between the Veteran's bilateral hearing loss and the Veteran's service. The VA examiner/audiologist who offered it based her opinion on her medical expertise, a review of the claims file and related literature (the Veteran's submissions and a manual and report she cited), the Veteran's service and medical history, and the present degree of the Veteran's hearing loss. In finding the hearing loss less likely than not due to in-service noise exposure and more likely impacted by occupational noise exposure, presbycusis and/or some other etiology, she referred to whispered hearing tests on enlistment as an invalid measurement of hearing, and 1961 and 1962 hearing tests as significant, showing normal hearing and no significant threshold shifts that would be indicative of acoustic trauma. She acknowledged the Veteran's in-service hazardous noise exposure but noted no objective evidence of an in-service noise injury. The examiner also referred to IOM's 2006 study and indicated that it resulted in a conclusion that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after the noise exposure ceases. She noted that the committee doubted the existence of delayed-onset hearing loss based on current understanding of human auditory physiology. In discussing the Veteran's service-related and nonservice-related noise exposure, the examiner questioned the Veteran's credibility, pointing out that, although there is some overlap in the Veteran's various reports of noise exposure, in November 2019 during a VA examination, the Veteran reported significant post-service occupational and recreational noise exposure (in direct conflict with his more recent contentions). More specifically, he reported that, post-service, he installed and built kitchen counters, and was a quality control manager for a machine parts process and a heater treating metal materials (occasionally used hearing protection in the latter position). The examiner indicated that the last two jobs are in manufacturing, which, as of 2018, was one of the loudest industries per the National Institute for Occupational Safety and Health. The Veteran also reported that he did wood working recreationally (used hearing protection) and used lawn equipment (did not use hearing protection). The Veteran has asserted that he saw a doctor in 1963 for hearing loss and was told he had cochlear damage, but there is no evidence objectively confirming this assertion or showing hearing loss prior to 2009, decades after service. During his hearing, he indicated that, because VA wouldn't fill out a nexus statement for him, he planned to secure one from a private audiologist. However, he never followed up by submitting a medical opinion in support of this claim, including any refuting that of the February 2021 VA examiner. The Veteran's assertions thus represent the only evidence of record linking his hearing loss to service. The Veteran might believe such a relationship exists; however, not being trained in medicine, he is not competent to provide a nexus opinion in this case. This issue is medically complex, requiring interpretation of audiological testing and knowledge of the interaction between noise exposure and/or acoustic trauma and hearing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Veteran has also argued that, at a young age, noise exposure resulting in temporary threshold shifts can exacerbate age-related hearing loss, accelerating when it initially manifests. He has submitted medical literature substantiating this argument. However, as the February 2021 VA examiner pointed out, according to in-service testing, although the Veteran was exposed to noise during service, he did not experience any threshold shifts in response to the exposure. The articles are therefore inapplicable to the facts in the Veteran's case. As the Veteran's bilateral hearing loss did not manifest in service or within one year of discharge, and the only competent, probative evidence of record rules out a relationship between the hearing loss and service, including the noise exposure and conceded acoustic trauma, the criteria for entitlement to service connection for bilateral hearing loss are not met. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.