Citation Nr: 21029580 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-41 891A DATE: May 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. FINDING OF FACT The most probative (meaning most competent and credible) evidence is against finding that the Veteran had hearing loss in service, or sensorineural hearing loss within a year of separating from service, or that this disability is otherwise etiologically related or attributable to his service, including to noise trauma. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral hearing loss disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from July 1967 to April 1969. This claim was previously before the Board in September 2020 but was remanded for further development and consideration including especially to have the Veteran undergo a VA audiological examination for a medical nexus opinion concerning the origins of his bilateral hearing loss, especially in terms of whether related or attributable to his military service. There since has been the required compliance certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for bilateral hearing loss disability The Veteran has a current hearing loss disability for VA compensation purposes, meaning sufficient hearing loss according to 38 C.F.R. § 3.385 to be considered a ratable disability. See August 2013 Disability Benefits Questionnaire (DBQ). His DD Form 214 also shows that his military occupational specialty (MOS) was Combat Engineer (equivalent to a civilian construction machine operator), so noise exposure in service is conceded. Thus, resolution of this claim turns, instead, on whether there also is the required attribution of his hearing loss to his service including especially to that conceded noise trauma in service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303. However, as will be discussed, the most probative evidence is against this posited correlation ("nexus") between is hearing loss and service. The Veteran's service treatment records (STRs) are unremarkable for complaints of hearing loss, also of a diagnosis, and his April 1969 Report of Medical Examination for separation purposes audiogram reflects that he had normal hearing acuity. In addition, his corresponding Report of Medical History reflects that he specifically denied hearing loss. Also, notably, he reported other unrelated problems; thus, the record reflects that he was willing to report complaints or ailments if he had them or had previously had them. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). His military service ended in April 1969. More than four decades later, so well after separating from service, the Veteran filed a claim for service connection for hearing loss in 2012. The Board realizes that he stated on his May 2012 VA Form 21-4138, Statement in Support of Claim, that he had had difficulty with his hearing since his service in Vietnam (i.e., since 1968). However, the Board finds this recollection less than credible given the record, as a whole, including especially when considering his normal hearing acuity when subsequently separating from service in 1969, also his express denial of hearing loss in 1969, a lack of clinical records in the next four decades noting any hearing loss, and his denial of any noticeable hearing loss in the interim in December 2011 and December 2012 when being seen by a treating clinician, and his even more recent August 2020 statement conceding he cannot recall the date of onset of his hearing loss, although he has had it for "several years". Ultimately, the Board finds that the STRs, which are contemporaneous to the Veteran's service, are more credible than his statements of continuous hearing loss since his service that were made decades later and for compensation purposes. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal or pecuniary interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) In addition, courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Partly for this reason, the Board finds that, if the Veteran had been experiencing noticeable hearing loss since his service, he would have reported it, rather than contrarily specifically denying it. Any clinical opinion based on the notion of continuity of symptoms since service, consequently, would lack probative value inasmuch as continuity of symptoms since service has not been credibly shown. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). It is true the mere absence of evidence, such as during those many intervening years (in fact, more than 40 years), does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Federal Circuit Court also has held however that, while the absence of contemporaneous records (such as treatment records) does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). The August 2013 VA DBQ mentions the Veteran's statement that he had had hearing loss since approximately 1969 to 1970, so since his time in service. He reported post-service noise exposure as a farmer and while hunting but contended that he wears hearing protection during those other activities. The examiner nonetheless found it less likely than not the Veteran's then current hearing loss disability is causally related to his service because he did not have acoustic damage to his ears owing to his service. In essence, while he was exposed to loud noises, they did not cause damage to his auditory system. The examiner pointed out the Veteran had normal hearing at the time of separation from service, in 1969, and, therefore, the current hearing loss is less likely than not related to military noise exposure. An August 2020 private record (Ear, Nose & Throat (ENT) & Sleep) reflects that the Veteran reported hearing loss "of several years duration" and the clinician's finding that it is "more likely than not associated with his past noise exposure." This commenting clinician, however, did not discuss the Veteran's normal hearing at time of separation from service or his express denial of hearing loss at that same time, and this commenting clinician also did not differentiate any in-service noise exposure to any additional post-service noise exposure, rather, just noted more generally "past" noise exposure, which realistically could include four decades of noise exposure since service, so aside from the noise exposure during the Veteran's service. The Board thus concludes this opinion has limited probative value. Partly for this reason, the Board remanded this claim back to the RO in September 2020 for more medical comment on this determinative issue of causation. A September 2020 VA DBQ, in response, contains the following opinion of the examiner: With regard to the Veteran's hearing loss, it is less likely than not due to acoustic trauma from noise in service. The Veteran separated with normal hearing. Given that there is no hearing loss at separation, his current hearing loss would not be the result of acoustic trauma in service. The Veteran worked around noise in farming and he also shot guns regularly for recreation. He states that both of these activities were done using hearing protection, however it is possible that hearing protection was not worn at all time and when it was worn that it was worn correctly. The Veteran is seen for his VA hearing test when he is 66 years old. Per Gates and Cooper, 43% of adults age 65-84 have hearing loss (1991). Given his age in 2013 and the potential for noise exposure in civilian life, it is at least as likely as not that his hearing loss is the result of presbycusis and/or noise exposure after service. The examiner then goes on to further explain that: According to Noise and Military Service: Implications for hearing Loss and Tinnitus, "No Longitudinal studies have examined patterns of hearing loss in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of noise exposure. The Committee's understanding of the mechanisms and processes involved in the recovery from noise exposure suggests, however, that a prolonged delay in the onset of noise-induced hearing loss is unlikely (2005)." They also go on to say "[t]he evidence from laboratory studies in humans and in animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days. "A recent publication from the American College of Occupational and Environmental medicine states that there is insufficient evidence to support that "previously noise exposed ears are not more sensitive to future noise exposure (2018)." They also go on to state: "[t]here is insufficient evidence to conclude that hearing loss due to noise will progress once the noise exposure is discontinued. This is primarily based on a National Institute of Medicine [IOM] report which concluded that, on the basis of available human and animal data, it was felt unlikely that such delayed effects occur (2018)." Given the above, it is less likely than not that his hearing loss is due to noise exposure on active duty. The Veteran had noise exposure in service but also since service, indeed, over the course of many years, and it can reasonably be found that he had noise exposure due to his occupation as a farmer and his recreation of hunting albeit with ear protection. Thus, there was not just exposure to noise during his military service. Moreover, he has aged several decades since his service. According to the holdings in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), VA regulations do not necessarily preclude service connection for hearing loss that first met the requirements of 38 C.F.R. § 3.385 after service. See also 38 C.F.R. § 3.303(d) (permitting service connection when the initial diagnosis was after service, provided the evidence, including that pertinent to service, shows the disability was incurred in service). Here, though, while § 3.385 does not necessarily preclude service connection when hearing loss first meets this regulation's requirements for a ratable disability after service, it also does not hold that service connection is warranted, or mandatory, for hearing loss disability first shown after service (particularly so long after service) in the absence of competent and credible evidence of the required attribution of the hearing loss disability to the Veteran's service or competent and credible evidence of continuity of symptoms since service as an alternative means of establishing this required correlation ("nexus"). See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Neither means of linking the current hearing loss disability to the Veteran's service is competently and credibly shown here. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has not been shown to have the experience, training, or education necessary to give a probative opinion regarding the origins of his current hearing loss disability, including in terms of whether related or attributable to anything that occurred during his time in the military. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In sum, then, the Veteran had normal hearing upon separation from service in 1969, and also expressly denied having hearing loss in service, he has had post-service noise exposure, he later denied any noticeable hearing loss post service, and the earliest evidence of hearing loss is more than four decades after his separation from service. Add to that he is not credible as to continuity of symptoms since his service, and the most probative clinical opinion concerning the determinative issue of causation disassociates his present hearing loss from his service. For these reasons and bases, service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.