Citation Nr: 21029945
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 19-39 154
DATE: May 17, 2021

ORDER

Service connection for bilateral hearing loss is denied.

FINDING OF FACT

The Veteran's bilateral hearing loss was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1962 to September 1966.

1. Entitlement to service connection for bilateral hearing loss

The Veteran is seeking service connection for bilateral hearing loss.  He contends that service connection is warranted because he experienced significant noise exposure from both weapons and from aircraft while working on the flight line without hearing protection.  Specifically, he states that he was around jet engine noise for almost all of his active duty service.  He also states that his hearing loss began during his active duty service and that the physician that performed his separation examination ignored and failed to document it.

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110.  Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).

Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  This presumption is rebuttable by affirmative evidence to the contrary.  Id.  Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).

Service connection for a current hearing loss disability is not precluded by 38 C.F.R. § 3.385 where hearing was within normal limits on audiometric testing at separation from service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Rather, when audiometric test results from a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).

Where the requirements for a hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385.  Hensley, 5 Vet. App. at 155.  If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385, then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes.  Hensley, 5 Vet. App. at 159.

After a review of the evidence of record, the Board concludes the preponderance of the evidence weighs against finding that service connection is warranted for bilateral hearing loss.  38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Initially, the Board notes that it is willing to accept the Veteran's assertions that he was exposed to acoustic trauma as an air policeman.  However, the in-service medical records fail to show that his bilateral hearing loss was incurred in or is otherwise etiologically related to his active duty service.  First, his service treatment records do not reflect any complaints, signs, symptoms, or a diagnosis related to bilateral hearing loss.  Next, the evidence fails to show a threshold shift in his hearing during his active duty service.  Here, his entrance examination reflects that his hearing acuity was measured at 15 of 15 bilaterally during a whispered voice test.  The Board does not consider the findings of the whispered voice test to be probative in this case because whispered voice tests have been recognized by VA as unreliable.  See VBA Training Letter 211D (10-02), dated March 18, 2010 (stating that whispered voice tests "cannot be considered as reliable evidence that hearing loss did or did not occur").

Nevertheless, there is no evidence that suggests that his hearing was abnormal when he entered service.  The report from his July 1966 separation examination did not show hearing loss.  The Board notes that unless otherwise specified, service department audiometry prior to January 1, 1967, is assumed to have been reported in American Standards Association (ASA) units.  To facilitate review, the ASA values have been converted to International Standard Organization (ISO) standards (and the latter are the numerical values in parentheses).  Specifically, the report from the July 1966 separation examination shows that he underwent an audiological examination and that his pure tone thresholds, in decibels, were as follows:

  	 	 	HERTZ	 	 

 	500	1000	2000	3000	4000

RIGHT	-5 (5)	-5 (5)	-5 (5)	-5 (5)	-5 (5)

LEFT	0 (10)	-5 (5)	0 (10)	-5 (5)	10 (15)

Moreover, the Veteran did not report any hearing loss in his report of medical history.  In fact, in his July 1966 report of medical history, he denied hearing loss and stated that he was in "very good health."

Next, no post-service medical evidence indicates that the Veteran complained of symptoms of or sought treatment for bilateral hearing loss and tinnitus.  In fact, the only post-service clinical evidence of record is the report from the October 2016 VA examination.  Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for hearing loss and tinnitus is not warranted because these disorders did not manifest to a degree of 10 percent or more within a year of separation from active service.  See 38 C.F.R. § 3.307(a).

The post-service clinical evidence also fails to establish a relationship between the Veteran's bilateral hearing loss and his active duty service.  In this case, the post-service evidence does not reflect that he sought treatment for or reported signs or symptoms of bilateral hearing loss prior to the March 2017 VA examination.  Thus, the post-service evidence does not show that he reported signs or symptoms of or sought treatment for bilateral hearing loss until more than 50 years after his separation from service.  Given the significant gap between his separation from service and when he first reported signs or symptoms of bilateral hearing loss, a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). 

The Board observes that the Veteran is competent to report symptoms of hearing loss since his active duty service.  However, the record is devoid of evidence demonstrating a continuity of symptomatology because the record contains no post-service clinical evidence concerning complaints of or treatment for hearing loss until he attended the March 2017 VA examination.  Accordingly, given the lack of any clinical evidence showing consistent treatment for or complaints regarding symptoms of hearing loss, service connection for bilateral hearing loss is not warranted based on continuity of symptoms.

Service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's bilateral hearing loss to his active duty service, despite his contentions to the contrary.

As an initial matter, there is no objective evidence linking the Veteran's bilateral hearing loss to his active duty service.  The Board also places significant probative weight on the opinions of the March 2021 VA examiner.  Based on a review of the claims file and an in-person examination that included an audiological examination, the examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service.  In support of the opinion that his bilateral hearing loss was not caused by or a result of an in-service event, the examiner explained that the Veteran's separation examination showed normal hearing bilaterally, the service treatment records did not reflect any complaints regarding impaired hearing, and that although noise exposure was conceded, auditory damage and hearing loss could not be conceded based upon noise exposure alone because the evidence was against a nexus between his noise exposure an hearing loss.  The examiner further explained that the 2009 study cited by the Veteran's representative solely referenced results in lab animals, and that until similar results were clinically proven to exist in humans, established norms that noise does not accelerate hearing loss after exposure remained, particularly in the Veteran's case where the separation examination showed that his hearing was not worsened during service.  Finally, the examiner explained that it was possible to find a nexus between the Veteran's tinnitus and active duty service and not his hearing loss and active duty service because tinnitus is more subjective and not measurable.  

The Board concludes that the examiner's opinion is highly probative, entitled to substantial weight, and shows that the Veteran's bilateral hearing loss is not etiologically related to his active duty service given the thorough rationale provided by the examiner, the examiner's expertise, and the examiner's in-person examination and review of the claims file.  Additionally, the Board notes that the Veteran has not provided any evidence, including private opinions and/or medical evidence to establish a nexus between his bilateral hearing loss and his active duty service.

The Board has also considered the statements made by the Veteran relating his hearing loss to active service.  The Federal Circuit has held that "[l]ay 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."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, while the Veteran can provide competent testimony regarding symptoms of hearing loss, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion.  See Jandreau, 492 F.3d at 1377, n.4.  Thus, to the extent that the Veteran believes that his hearing loss is related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion.  

By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim seeking service connection for bilateral hearing loss.  Accordingly, the Veteran's appeal is denied.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  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.

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Crosnicker, Associate Counsel