Citation Nr: 21029629 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-12 423 DATE: May 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1131, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, this matter was previously before the Board in September 2019. At that time, the Board reopened and remanded the issue of entitlement to service connection for bilateral hearing loss. The Board notes that the September 2019 Board decision also included the issues of entitlement to service connection for a bilateral knee disability and posttraumatic stress disorder (PTSD). See September 2019 BVA Decision. However, during the pendency of the appeal, a June 2020 rating decision granted entitlement to service connection for left and right knee arthritis, and a subsequent August 2020 rating decision granted service connection for PTSD with alcohol use disorder, cannabis use disorder, and insomnia disorder. See June 2020 Rating Decision Narrative; August 2020 Rating Decision Narrative. Accordingly, as the Veteran's claims of entitlement to service connection for a bilateral knee disability and PTSD have been granted, the issues are no longer in appellate status as there are no cases or controversies presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Service Connection Generally, to establish service connection a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases, including hearing loss, may be presumed to have been incurred in service when they manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500 Hertz (Hz), 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz are 40 decibels or greater; or at least three of the frequencies 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Entitlement to service connection for bilateral hearing loss is denied. During his February 2019 hearing, the Veteran testified that his current bilateral hearing loss disability was caused by in-service traumatic noise exposure. Specifically, the Veteran reported that he was constantly exposed to jet noise while he was stationed aboard the USS Constellation, CV-64. He further testified that he worked in the vessel's boiler room in proximity to heavy machinery. In addition, the Veteran indicated that he wore hearing protection during service. See February 2019 Hearing Transcript, pages 13-15. Alternatively, the Veteran reported that his bilateral hearing loss may have been caused or aggravated by his service-connected tinnitus. See March 2016 VA Form 9. A review of the service treatment records (STRs) shows a December 1985 enlistment report of medical examination that notes the Veteran's ears and drums to be normal, and an audiogram performed in connection with the examination revealed the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 5 -5 5 5 5 Left 5 5 5 5 15 In addition, the October 1989 separation report of medical examination continues to show the Veteran's ears and drums to be normal, and an audiogram obtained in connection with the examination revealed the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 5 0 0 0 10 Left 5 0 0 5 5 In summary, there is no showing of any hearing loss in the STRs. See October 2009 STR Medical. A review of the post-service treatment records shows that the Veteran underwent 18 audiograms in connection with his work as a civilian firefighter for the Department of Defense between January 1994 and March 2015. The first post-service audiological examination of record was conducted in March 1995, approximately 6 years after service, and shows that the Veteran did not have a hearing loss disability for VA purposes, pursuant to 38 C.F.R. § 3.385. To this end, the January 1994 audiogram revealed the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 5 0 -5 5 5 Left 5 0 0 5 10 Notably, a December 2005 audiogram shows a positive threshold shift of 15 decibels at 4000 Hz in both of the Veteran's ears. See October 2009 Medical Treatment Record Government Facility. The Veteran initially underwent a VA examination for hearing loss and tinnitus in August 2012. During the examination, the Veteran stated that he worked as a Hull maintenance technician and as a damage control man during service. He further reported that he fired weapons without hearing protection while he was serving on active duty. On audiometric examination, the examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 10 10 10 10 15 Left 25 20 15 20 25 Speech recognition scores were 96 percent for the right ear and 94 percent for the left ear. Following the examination, the examiner diagnosed the Veteran with normal hearing, bilaterally, and found that there was no pathology to diagnose the Veteran with hearing loss. See August 2012 VA examination. The first post-service audiological evaluation showing hearing loss for VA purposes is dated in April 2014, approximately 25 years after the Veteran was discharged from active duty service. Specifically, an April 2014 audiogram revealed the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 5 0 0 15 30 Left 30 10 15 20 45 However, the Veteran's left ear was retested five days later because the initial April 2014 audiogram revealed a significant threshold shift of 20 decibels at 4000 Hz. See September 2015 Medical Treatment Record Government Facility. The second April 2014 audiogram revealed the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Left 25 10 15 15 35 Thereafter, in October 2017, the Veteran endorsed hearing loss, primarily in his left ear. In addition, a March 2019 VA audiology progress note shows that the Veteran reported worsening bilateral hearing loss. After performing an evaluation, the examiner opined that the Veteran's hearing loss was consistent with hazardous noise exposure. In this regard, the examiner found that the Veteran's reported in-service traumatic noise exposure, to include noise from the aircraft carrier, engine rooms, and aircraft, was consistent with hazardous noise. See September 2019 CAPRI. In support of his claim, the Veteran submitted private audiograms, dated in March 2019 and August 2020, which confirm that the Veteran has a current bilateral hearing loss disability. However, neither private physician provided an opinion regarding the etiology of the Veteran's diagnosed bilateral hearing loss disability. See April 2019 Medical Treatment Record Non-Government Facility; August 2020 Medical Treatment Record Non-Government Facility. The Veteran was afforded a VA examination in December 2019. During the examination, the Veteran reported that he served on an aircraft carrier. Specifically, the Veteran reported that he worked in the hanger and was exposed to constant noise from ship engines, boilers, heavy equipment, and jet engines. He further reported that hearing protection was only available "about half the time." However, the Veteran also stated that he worked as a firefighter and was exposed to loud machinery and sirens after he was discharged from active duty service. In this regard, the Veteran indicated that he used hearing protection "when necessary" in his post-service occupation. The examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 10 15 10 20 40 Left 35 15 15 30 40 Speech recognition scores were 94 percent for the right ear and 88 percent for the left ear. After performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss is related to an in-service injury, event, or disease. In this regard, the examiner acknowledged the Veteran's contentions regarding his in-service noise exposure and noted that his military occupational specialty (MOS) as a firefighter had a moderate probability of exposure to hazardous noise. However, the examiner also found that there were no significant threshold shifts shown in the STRs and that the Veteran's hearing was well within the normal range at separation. The examiner further noted that the evidence of record included multiple post-service audiograms dated from 1994 through 2015, which were obtained while the Veteran was working as a firefighter for the Department of Defense. In this regard, the examiner noted that the Veteran's ninth post-service audiogram, dated in December 2005, revealed a positive threshold shift of 15 decibels at 4000 Hz in both of the Veteran's ears, and beginning in 2007, the Veteran's post-service audiograms also indicate a positive threshold shift at the frequency level of 6000 Hz. The examiner reported that the positive significant shifts at 4000 Hz and 6000 Hz were consistent with hazardous noise exposure, but also found that such evidence also indicated that traumatic noise exposure did not occur until December 2005, approximately 16 years after the Veteran left the service. Thus, the examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or the result of an event in military service. Rather, the examiner found that it was more likely that the Veteran's hearing loss was caused by noise he was exposed to as a Department of Defense contractor. See December 2019 C&P examination. After a review of the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted. In the present case, there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, the December 2019 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. See December 2019 C&P examination. Accordingly, the Veteran meets the regulatory criteria for impaired hearing and the remaining question is whether his bilateral hearing loss is related to service. 38 C.F.R. § 3.385. The Board notes that the Veteran's STRs do not reveal any complaints of, or treatment for, hearing loss. Further, the first post-service treatment records showing evidence of hearing loss are dated in December 2005, approximately 10 years after the Veteran was discharged from active duty service, and he was not shown to have hearing loss for VA purposes until April 2014. See September 2015 Medical Treatment Record Government Facility. As to whether the Veteran's current bilateral hearing loss disability is related to service, the Board finds the December 2019 VA examination report to be the most probative evidence of record. In this regard, the Board finds the opinion proffered in the March 2019 VA audiological progress note to be inadequate. Specifically, after performing an evaluation, the examiner opined that the Veteran's hearing loss was consistent with hazardous noise exposure. In this regard, the examiner found that the Veteran's reported in-service traumatic noise exposure, to include noise from the aircraft carrier, engine rooms, and aircraft, was consistent with hazardous noise. See September 2019 CAPRI. However, the Board notes that the March 2019 medical opinion did not discuss the effect of the Veteran's post-traumatic noise exposure or of the post-service audiograms dated from January 1994 through March 2015. As such, the Board finds that the December 2019 private medical opinion lacks probative value, and, thereby, currently inadequate to adjudicate the issue on appeal. See Reonal v. Brown, 5 Vet. 458, 461 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In contrast, the Board finds the December 2019 VA opinion to be the most probative evidence of record. In this regard, after performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss disability was incurred in or caused by the claimed in-service injury, event, or illness. In support of her opinion, the examiner noted that the Veteran's STRs did not indicate that he had bilateral hearing loss during service. The examiner further noted that the positive significant shifts at 4000 Hz and 6000 Hz, recorded in December 2005 and August 2007, were consistent with hazardous noise exposure, but also found that such evidence also indicated that traumatic noise exposure did not occur until December 2005, approximately 16 years after the Veteran was discharged from active duty service. Thus, the examiner opined that it was less likely than not that the Veteran's claimed bilateral hearing loss disability was caused by of the result of the Veteran's active duty service. To the contrary, the examiner opined that it was more likely than not that the Veteran's currently diagnosed bilateral hearing loss was caused by or the result of noise exposure incurred during his post-service employment as a civilian contractor for the Department of Defense. See December 2019 C&P examination. The Board finds that the December 2019 VA examiner's opinion was based on a thorough review of the record, is supported by a reasoned analysis of medical facts, and is consistent with the evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board recognizes that the medical opinions of record do not address whether the Veteran's bilateral hearing loss is etiologically related to his service-connected bilateral tinnitus. However, the Board finds that there is no competent evidence showing that the Veteran's bilateral hearing loss disability may be related to his bilateral tinnitus. As such, the Board finds that the Veteran's claim does not meet the low threshold requirements of McLendon, and therefore VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (explaining that something more than conclusory, generalized statements is needed to trigger the VA's duty to assist); Duenas v. Principi, 18 Vet. App. 512, 517 (2004). The Board further recognizes the Veteran's assertion that his claimed bilateral hearing loss disability is related to his in-service noise exposure. While the Veteran can competently report the onset and continuity of hearing loss symptoms, an actual diagnosis of sensorineural hearing loss requires objective testing to determine whether it is severe enough to be considered a disability for VA compensation purposes. Moreover, hearing loss can have many causes, and the Veteran is not competent to opine as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Therefore, the Board concludes that any lay assertions by the Veteran in the present case are outweighed by the medical evidence of record, including the December 2019 VA opinion. As stated above, the examiner has training, knowledge, and expertise on which she relied to form her opinion and she provided a persuasive rationale. Importantly, there is no competent medical evidence to the contrary. Accordingly, the Board finds that the third Shedden requirement has not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, Associate 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.