Citation Nr: 21030113 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-19 505 DATE: May 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a diagnosis of bilateral hearing loss that began during active service, manifested to a compensable degree within one year of service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(b), 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1969 to June 1971. This matter before the Board of Veterans' Appeals (Board) is on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in November 2018. A transcript of the proceeding is of record. This matter was most recently before the Board in September 2020. The Board remanded on the issue of entitlement to service connection for bilateral hearing loss to seek a new medical opinion, as the opinions of record were deemed inadequate. A review of the file reflects that a new examination was completed and another medical opinion was obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. VA considers sensorineural hearing loss an organic disease of the nervous system, which is listed as a chronic disease under 38 C.F.R. § 3.309(a). As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of "continuity of symptomatology" since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and puretone thresholds above 20 decibels may demonstrate hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). However, hearing loss at this level does not equate as being a "disability" for VA purposes. McKinney, 28 Vet. App. at 24-5. Specifically, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As combat service has been conceded, the provisions of 38 U.S.C. § 1154 (b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §§ 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 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. The Board previously conceded that the Veteran has a current diagnosis of bilateral hearing loss by VA standards, as evidenced by the VA examination dated March 2014 whereby his speech recognition scores using the Maryland CNC Test were less than 94 percent. Additionally, puretone thresholds were recorded, in decibels, as follows on his most recent VA examination from March 2021: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 45 40 40 LEFT 35 35 40 30 45 The average pure tone threshold was 41.25 dB for his right ear and 37.50 dB for his left ear. Speech audiometry revealed speech recognition ability of 96 percent in his right ear and 84 percent in his left ear. As the Veteran has auditory thresholds of at least 40 dB in one or more frequencies, he meets VA criteria to establish a current disability of bilateral hearing loss. Moreover, hazardous noise exposure has been conceded, as indicated in the AOJ's July 2020 rating decision when it granted entitlement to service connection for tinnitus. The etiology opinions of record have each opined that it is less likely than not that the Veteran's bilateral hearing loss was caused by or incurred during his active duty service. The first opinion, dated March 2014, stated, "The Veteran had normal hearing sensitivity...at entrance [December 1968] to the service. The whispered voice test was documented at exit (May...1971) from the service. The Veteran was recorded as having passed this test. Threshold specific testing was not obtained at exit from the service. However, the Veteran did have another hearing exam at a re-enlistment exam April...1978. This exam indicated that the Veteran had normal hearing sensitivity...He did not experience any significant threshold shifts when comparing the exam from [April 1978] to the exam from [December 1968]." In its prior decision, the Board determined that this opinion was inadequate because a hearing disability for VA purposes does not need to be shown during service to warrant service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). To that end, the Board remanded for consideration of the medical journal evidence submitted by the Veteran that indicated a causal relationship between military service, noise, exposure, and hearing loss when providing an etiology opinion. Thereafter, a second opinion was provided in July 2019. At that time, the physician opined as follows: "Hearing loss is less than likely due to noise in the service. This is based on the fact that there was no significant decrease in hearing acuity while the Veteran was in the service. This is evidenced when comparing the hearing exams of 1978 to the entrance exam of 1968. Although noise exposure has been conceded, the committee determined that a delay of many years in the onset of noise induced hearing loss following an earlier exposure is extremely unlikely. It is possible that the 'subjective' awareness of the effects of noise on hearing may be delayed (Noise and Military Service: Implications for Hearing Loss and Tinnitus). This can be used as evidence in the absence of objective data. The objective data shows no significant decrease in hearing acuity while in the service and therefore, hearing loss is less than likely due to noise in the service." The Board ultimately determined that this opinion was also inadequate. The examiner was requested to identify the possible causes of hearing loss and explain why or why not, based on the totality of the evidence, this particular Veteran's hearing loss is or is not related to noise exposure in service. The examiner did not identify the potential causes of hearing but, notably, found that tinnitus was due to noise exposure. Moreover, though this physician briefly considered the Veteran's medical literature, he did not explain or rationalize why the concept of delayed onset hearing loss is inapplicable to the Veteran's case. As such, the Board remanded once more for an addendum opinion that considered delayed onset hearing loss and explain why it is or is not applicable to the Veteran's hearing loss. A third opinion was provided in March 2021. The audiologist, Dr. H.B.S., also opined that it is less likely than not that the Veteran's bilateral hearing loss was caused by or incurred during his active duty service. She rationalized, "[The Veteran] reported he saw combat and was exposed to minesweepers, ships, heavy equipment, diesel engines, radar scopes, missiles, small arms fire, explosions, sound powered phones, and radios. He reported negative usage of hearing protection. Civilian noise included machinery with positive usage of hearing protection. Review of service treatment records revealed an enlistment exam (no date could be read due to scanning) which revealed normal hearing. An exam at exit from May 1971 revealed a whisper exam. Whisper exams are deemed invalid for rating purposes. A re-enlistment exam from 1978 showed normal hearing. The Institute of Medicine's landmark study on military noise exposure found there is no scientific basis for delayed onset noise induced hearing loss. Because there is no significant change in hearing sensitivity from 1968-1978, hearing loss is less likely than not caused by or the result of an event in military service. There is correlation between noise and hearing loss as evidenced in Noise and Military Service: Implications for Hearing Loss and Tinnitus. However, the objective data from the entrance exam in 1968 and the re-enlistment exam from 1978 show no signs of acoustic trauma in regard to hearing sensitivity. The Veteran is service-connected for tinnitus which is also found to be related to acoustic trauma, but this is due to the subjective evidence he reported this incident began during the military. There is no objective data to refute this claim, like there is for hearing loss. The possible causes of the Veteran's hearing loss can be from his civilian noise exposure while working at [redacted] as well as age-related. The Veteran reported he was exposed to hazardous noise with his civilian job and he was required to utilize hearing protection. All exams from service found within the service treatment records indicate normal hearing. Delayed onset hearing loss related to noise exposure is not justified based on studies conducted." The Board accepts Dr. H.B.S.'s opinion as adequate in finding that the Veteran's hearing loss is less likely than not related to his in service exposure to hazardous noise. While addressing delayed onset hearing loss, she explains that the Veteran was exposed to hazardous noise post-service (albeit with hearing protection) and this is the more likely cause because there were no shifts in his hearing during service to reflect objective data (while considering the medical journal article submitted by the Veteran). As addressed below, the Veteran has testified to noticing hearing loss after he left service sometime in the mid 1970s. Thus, the examiner relied on an accurate factual basis. The only evidence capable of substantiating the claim consists of the Veteran's own opinion as to a causal relationship between hearing loss and in-service noise exposure as well as a medical article entitled "Noise and Military Service." The medical article has some probative value concerning the effects of noise exposure on hearing loss, but the probative value is significantly less than the medical examiner opinion which considered the article with application of training and experience to the particular facts of this case. The Veteran is not shown to possess the requisite medical training and expertise to speak to the causal relationship between hearing loss and in-service noise exposure. The Board has also considered whether there is a basis for potentially substantiating a claim based upon the combat provisions of 38 U.S.C. § 1154(b). The Board has no reason to doubt the Veteran's testimony wherein he described first noticing any hearing impairment after he left service. As such, the credible lay evidence establishes no hearing impairment occurred during or contemporaneous in time to combat service. The Board has also considered whether there is a basis for potentially substantiating a claim based upon continuity of symptomatology alone under 38 C.F.R. § 3.303(b). Again, the Veteran credibly testified to the onset of hearing impairment after service. In this context, the Veteran's perception of decreased hearing acuity sometime after service does not adequately support a finding of actual sensorineural hearing loss being first manifested in service. 38 C.F.R. § 3.303(b), or hearing loss to a compensable degree within one year of service which requires actual audiometric data or word list testing. 38 C.F.R. § 3.309(a). See generally McKinney, 28 Vet. App. at 24-5 (hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385). Based on the totality of the evidence, including the VA examinations, the most recent opinion provided by Dr. H.B.S., and the Veteran's lay statements, the Board finds that the preponderance of the evidence is against the claim that his bilateral hearing loss was incurred in or caused by his active duty service. For these reasons, the Board must deny his claim for entitlement to service connection for bilateral hearing loss. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.