Citation Nr: 21029251 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 11-34 100 DATE: May 13, 2021 ORDER Service connection for right ear hearing loss is denied. FINDING OF FACT Right ear 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 right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 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 from August 1965 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2010 by a Department of Veterans Affairs (VA) Regional Office. In March 2011 and December 2014, the Veteran testified at hearings before a Decision Review Officer and, in June 2017, he testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of such hearings are associated with the record. In November 2017, September 2019, and December 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for right ear 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; 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, 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. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that high frequency sensorineural hearing loss is considered an organic disease of the nervous system and therefore a presumptive disability. Alternatively, 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. 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). 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 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. 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 he is entitled to service connection for right ear hearing loss as a result of noise exposure in service. As an initial matter, the Board observes that the record, to specifically include August 2010, January 2017, and December 2017 VA examinations, reflect a current diagnosis of right ear hearing loss as defined by VA regulations. 38 C.F.R. § 3.385. Additionally, in-service noise exposure has been acknowledged and the Veteran has been awarded service connection for tinnitus based on such exposure. Thus, his claim turns upon whether his currently diagnosed right ear hearing loss is related to his military service, to include such acknowledged in-service noise exposure. In this regard, the Board notes that the Veteran underwent audiological evaluations in June 1965 for pre-induction to service and in June 1967 upon his separation from service. However, as such thresholds were presumed to have been recorded using American Standards Association (ASA) units, such must be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) units, as noted below. Specifically, the June 1965 pre-induction examination revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 Right 15 10 10 n/a 10 At the time of the Veteran's separation examination in June 1967, pure tone thresholds, in decibels, as converted to ISO-ANSI units, were as follows: HERTZ 500 1000 2000 3000 4000 Right 20 15 10 n/a 10 The Veteran underwent a VA audiological examination in August 2010 to address the etiology of his right ear hearing loss. At such time, the examiner opined that such disorder was less likely than not caused by or a result of noise exposure during military service. In support thereof, the examiner noted that the Veteran's hearing was within normal limits in service and that there was no shift in hearing thresholds as evidenced by the hearing tests conducted in 1965 and 1967. In January 2017, the Veteran was afforded another VA audiological examination in connection with his claim. At such time, the examiner noted that there was a permanent positive threshold shift (worse than reference threshold) greater than the normal measurement variability at any frequency between 500 and 6000 Hertz for the right ear, but opined that the Veteran's right ear hearing loss was not at least as likely as not caused by or a result of an event in military service as the hearing test administered on separation revealed normal hearing. In November 2017, the Board determined the August 2010 and January 2017 VA opinions were inadequate to decide the claim as the examiners did not appear to consider the Veteran's in-service audiograms as converted to ISO-ANSI units or specifically address the significance, if any, of the downward shift in his hearing acuity at 500 and 1000 Hertz from his induction examination in June 1965 to his separation examination in June 1967. Therefore, the Board remanded the case to obtain an opinion addressing these issues. Thereafter, the Veteran was afforded a VA examination in December 2017. At such time, the examiner opined that his right ear hearing loss was not at least as likely as not caused by or a result of an event in military service. In support thereof, she reasoned that the June 1965 and June 1967 examinations showed normal hearing in the right ear and there were no significant shifts between the audiograms. Thus, the examiner concluded that, since the Veteran had normal hearing at discharge, it was unlikely that his current right ear hearing loss had its onset during his service. She also noted that there were no documents related to hearing loss in the one-year period after his discharge and, thus, it was less likely than not that right ear hearing loss manifested within one year of his service discharge in June 1967. In September 2019, the Board noted that hearing loss need not be shown in service for service connection to be established. Further, the Board observed that the December 2017 VA examiner did not consider the in-service audiograms as converted to ISO-ANSI units or specifically address the downward shift in the Veteran's hearing acuity at 500 and 1000 Hertz as instructed in the November 2017 remand. The Board also noted that, in his September 2019 Informal Hearing Presentation (IHP), the Veteran's representative cited to a 2005 study from the Institute of Medicine (IOM) that found that young adults with a slight noise-induced high frequency hearing loss (i.e., 15-30 decibels at 6000 Hertz), such as an individual discharged from military service, will likely lose hearing at a faster rate post-discharge than their contemporaries who entered and exited military service with normal hearing. Thus, the Board again remanded the claim in order to obtain an addendum opinion addressing such matters. In November 2019, a VA examiner reviewed the record and opined that the Veteran's right ear hearing loss is less likely than not related to his military service. In support of such opinion, she stated that both the Veteran's June 1965 entrance examination and June 1967 separation examination reflected normal hearing. The examiner also noted that, per the National Veterans Health Administration (VHA) Audiology guidelines, American representatives to ISO working group recommended transition on January 1, 1965, but the U.S. did not immediately adopt the ISO-1964 standard. Therefore, there was a lot of confusion between 1964 and 1970. The Veteran's Benefits Administration (VBA) also issued guidance to assume that ASA was used for examinations dated October 31, 1967 or earlier. In this regard, the examiner observed that neither of the Veteran's audiograms state if ASA or ISO-ANSI standards were used; however, based on the above stated guidelines, if both the 1965 and 1967 audiograms were converted to ISO-ANSI, there is still no significant shift at any frequency (500, 1000, 2000 or 4000 Hertz). Additionally, if it is assumed the 1967 separation examination used ISO-ANSI and the 1965 audiogram used ASA, there still is no positive threshold shift in hearing at any frequency. The examiner also considered the IOM study cited by the Veteran's representative in his September 2019 IHP. In this regard, she stated the frequency, 6000 Hertz, was not documented on the Veteran's audiograms; however, the adjacent frequency of 4000 Hertz shows a threshold of 5 decibels (which converts to 10 decibels under ANSI-ISO units) on both 1965 and 1967 audiograms, which is well within normal limits. She further found that the record did not contained any documents related to hearing loss in the one year period after the Veteran's discharge. Therefore, it was less likely than not that his right ear hearing loss manifested within one year of his service discharge in June 1967. She further observed that the Veteran did not seek any audiology-related services through VA prior to 2010, which was 43 years after he was discharge. Therefore, the examiner opined that it was less likely than not that the Veteran's right ear hearing loss is related to his military service. However, as the November 2019 VA examiner did not discuss the downward shift in the Veteran's hearing acuity from his induction examination in June 1965 to his separation examination in June 1967 at 500 and 1000 Hertz or the lay statements of record regarding the onset and continuity of symptomatology referable to the Veteran's right ear hearing loss as directed in the September 2019 remand, the Board again remanded the claim in December 2020 in order to obtain yet another addendum opinion. Later that month, a VA examiner reviewed the record, to include the Veteran's reports of his in-service noise exposure as well as his in-service June 1965 and June 1967 audiograms, and offered the requested opinion. Specifically, consistent with the prior opinions, she noted that the Veteran had normal hearing at the time of his entrance and separation from service, and there was no significant shift in his hearing, which was defined as a change in a single threshold of 15 decibels or greater as defined by the National Institute of Occupational Safety and Health (NIOSH). In this regard, the examiner specifically considered the downward shift in the Veteran's hearing acuity at 500 and 1000 Hertz from June 1965 to June 1967, but found that such was not significant and was considered test-retest variability. The examiner further found that current medical research did not support a delayed onset of hearing loss due to noise exposure. In this regard, she observed that, based on some recent studies with rodents, a few investigators have speculated that a delayed onset of neural, central, or cochlear changes may occur as a result of noise exposure. However, the examiner found that there were genetic and physiologic differences between humans and rodents, some which were even observed among varying inbred strains of rodents used in research. She also noted that similar challenged in translational research were well-documented in other areas of biomedical investigation, including in the treatment of cancer and chronic diseases. Conversely, the examiner found that the IOM report currently remained the most comprehensive review regarding effects of noise exposure in the veteran population. In this regard, such stated "[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. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The examiner further considered the lay statements of record that documented the Veteran's reports of experiencing right ear hearing loss since service, but found that the objective audiometric data superseded such statements. In this regard, she found probative the fact that the Veteran did not seek any audiology-related services through VA prior to 2010, which was 43 years after he was discharged. Moreover, the examiner found that the 2010 audiogram was consistent with presbycusis (age-related hearing loss) rather than noise-induced hearing loss. Consequently, based on the totality of the evidence and in light of the foregoing, the examiner opined that it was less likely than not that the Veteran's right ear hearing loss had its onset in, or is otherwise related to his military service, to include his acknowledged noise exposure therein, or manifested within one year of his separation from service, i.e., by June 1968. The Board affords great probative value to the December 2020 VA examiner's opinion as such was based on a review of all of the pertinent evidence of record, to include the Veteran's in-service audiograms, a discussion of the downward shift in his hearing acuity from his induction examination in June 1965 to his separation examination in June 1967 at 500 and 1000 Hertz, the lay statements of record regarding the onset and continuity of symptomology of his right ear hearing loss, and relevant medical literature, to include the IOM (2005) report. Further, she provided a complete rationale, relying on and citing to the records reviewed, and offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); 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 is no medical opinion to the contrary. In reaching this determination, the Board acknowledges that the December 2020 VA examiner relied, in part, on the IOM (2005) report as a basis for providing a negative opinion, which has qualifying or contradictory statements. McCray v. Wilkie, 31 Vet. App. 243 (2019). However, the Board finds that such does not render the opinions inadequate or diminish their probative value. In this regard, the Board notes that the IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the IOM report's own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term ("unlikely"). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested "a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." The Board has also considered medical literature provided by the Veteran, through his representative, to include as referenced herein. However, the Board notes that generic medical literature that does not apply medical principles regarding causation or etiology to the facts of a specific, individual case is competent evidence sufficient to establish a nexus between a current disability and military service. See Libertine v. Brown, 9 Vet. App. 521, 523 (1966). In the present case, the medical literature falls do not pertain specifically to this Veteran and are not combined with a favorable opinion rendered by a medical professional addressing his specific case. Therefore, such literature is afforded no probative weight. The Board has also considered the Veteran's assertions that his right ear hearing loss is related to his in-service noise exposure. However, he, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the auditory system and the impact acoustic trauma/noise exposure has on it. Thus, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's opinion as to the etiology of his right ear hearing loss is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that right ear hearing loss manifested to a compensable degree within one year of the Veteran's separation from service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to right ear hearing loss and his hearing acuity was normal upon separation in June 1967. Additionally, as noted previously, in the highly probative December 2020 opinion, the VA examiner considered the Veteran's reports of experiencing hearing loss since his military service, but found that such did not manifest within a year of his separation from service. Moreover, to date, audiometric testing has yet to reveal that such has met the criteria for a compensable rating. 38 C.F.R. § 4.86, Diagnostic Code 6100. Consequently, presumptive service connection for right ear hearing loss, to include on the basis of a continuity of symptomatology, is not warranted. In conclusion, the Board finds that right ear 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. 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 for service connection for right ear 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; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.