Citation Nr: 21029931 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-35 461 DATE: May 17, 2021 ORDER Service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran's left ear hearing loss is not related to service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to October 1969. The case is on appeal from a July 2013 rating decision. In April 2016, the Veteran testified at a Board hearing. The case was most recently before the Board in June 2020. At that time, the Board granted service connection for right ear hearing loss on the basis of service aggravation and remanded the claim of service connection for left ear hearing loss for further development and adjudication. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for left ear hearing loss. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie,886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d), the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, if said evidence is consistent with the circumstances, conditions, or hardships of the Veteran's service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Specific to claims for service connection, 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, 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 In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that left ear hearing loss is related to his combat service in Vietnam. He asserts that it is the result of his exposure to constant weapons firing and explosions experienced during basic training, advanced individual training (AIT), and during his service in Vietnam. See August 2015 statement in support of claim; May 2016 Board transcript; and April 2020 statement in support of claim. Service treatment records (STRs) reflect that the Veteran's July 1967 entrance audiology exam recorded his pure tone thresholds as follows: HERTZ 07/27/1967 500 1000 2000 3000 4000 LEFT 15 10 25 -- 35 Thus, unlike for the right ear, hearing loss was not noted at entrance. An August 1969 separation audiology exam recorded his pure tone thresholds as follows: HERTZ 08/12/1969 500 1000 2000 3000 4000 LEFT 15 15 15 -- 15 As shown above, the Veteran's hearing was within normal limits at separation. Nevertheless, and as noted in the June 2020 Board decision, service personnel records (SPRs) reflect the Veteran participated in combat and was awarded the Combat Infantry Badge. As such, in-service combat and noise exposure is established as it is consistent with the conditions, circumstances and hardships of his combat service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Thus, the foregoing establishes the in-service element of the claim. As to the current disability element of the claim, in its June 2020 decision, the Board also noted that the Veteran has a current diagnosis of left ear hearing loss for VA purposes per the May 2019 VA audiology exam shown below. HERTZ 05/28/2019 500 1000 2000 3000 4000 Avg LEFT 60 85 80 85 90 85 Thus, the current disability element of the claim is also established. As such, the question here turns into whether a nexus exists between the in-service combat noise exposure and the current left ear hearing loss. In its June 2020 remand, the Board made reference to the January 2013 VA audiologist who deferred the left ear hearing loss nexus opinion to an otolaryngology specialist as she considered that the medical pathologies of the ear were "outside of the scope of practice of the audiologist." Accordingly, the Board remand the present claim to obtain a medical opinion by an ENT specialist to determine the nature and etiology of the Veteran's left ear hearing loss while considering the established in-service combat noise exposure, his statements with respect to an early onset of his disability and that any post-service noise exposure required mandatory use of hearing protection. A VA opinion from an ENT specialist was obtained in March 2021. The reviewing physician stated that upon review of the Veteran's lay statements with respect to his in-service constant exposure to loud noise; acknowledgement that the Veteran was in fact exposed to such noise; his statements as to the early onset of hearing loss; and with respect to the post-service occupational noise exposure with mandatory use of hearing protection, the claimed disability was still less likely than not incurred in or caused by the claimed in-service noise exposure. In support of his opinion, the reviewing physician indicated that as to the post-service mandatory use of hearing protection, "while it may be true that his work experience with Goodyear tires might not have contributed to his hearing loss, this does not rule out other potential causes of non-service related hearing loss, including age related changes in hearing." He added that "the fact that the veteran was afforded hearing protection after service does not negate the fact that there were no in-service threshold shifts in excess of 15 dB when comparing enlistment to separation. As to the Veteran's statements with respect to an early onset of his disability, the physician opined that while it is true that the Veteran began to "notice hearing loss after service as noted by the fact that he had surgery on his right ear in the 70's, [] surgery was performed [] for a conductive loss [and not] sensorineural." The VA examiner indicated that this is an important fact to consider as while noise exposure causes a sensorineural type hearing loss, it does not cause conductive hearing loss. He also explained that since that type of hearing loss (conductive) is not caused by noise, the fact that the Veteran began to experience hearing loss after service becomes a moot point. The physician indicated that in the present case "the key is to look at the audiograms [performed in] service to assess objectively for acoustic trauma." The ENT specialist highlighted that "this is important because a 15dB or greater shift is indicative of acoustic trauma" and here, the fact that such shift did not occur while in service, indicates that there was no acoustic trauma to the left ear. He added that "the mere fact of being exposed to noise does not indicate one will get hearing loss. This risk is based on intensity of the noise and duration of exposure. He went on to explain that while "there [is] some [research] suggesting a delayed onset hearing loss in animals, [] this has not been shown in humans and is not considered an accepted position." The accepted position is that noise sufficient to cause hearing loss will manifest in close proximity to the noise. In sum, the examiner opined that "the fact that [the Veteran] did not develop hearing loss in close proximity means it is less likely than not that [his left ear hearing loss] is related to service. The Board finds that the Veteran's left ear hearing loss is not caused by or otherwise related to his military service. In this regard, the March 2021 VA physician's findings and opinion are clear and unequivocal and are based on the relevant information, including the Veteran's statements, SPRs, STRs, and post-service medical records. In addition, the examiner's explanation is logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, his conclusion that the Veteran's left ear hearing loss is less likely than not caused by, or incurred in, service is highly persuasive and probative evidence. Moreover, the examiner explained that the Veteran's STRs show his left ear hearing was normal during service and cited to medical research that indicates hearing loss will manifest in close proximity to the noise, which in the present case did not occur. Moreover, the ENT specialist noted that the Veteran's complaints of hearing loss in the 1970s were of a conductive nature and not sensorineural, which per medical literature rules out an acoustic trauma etiology. (Continued on the next page) While the Veteran believes that his left ear hearing loss is related to service, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this case. This nexus question involves complex medical matters requiring expert consideration of the nature of the Veteran's in-service symptoms, his post-service symptomatology, and the medical significance of these factors in the context of his current hearing loss. These medical questions cannot be considered within the competence of a non-expert lay witness. Thus, the Veteran, as a lay person, has not established the competence needed to rebut the expert medical opinion. See Fountain v. McDonald, 27 Vet. App. 258, 274-75; Monzingo, 26 Vet. App. at 106. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran's left ear hearing loss is not related to service. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for left ear hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan 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.