Citation Nr: 21030148 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-01 360 DATE: May 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A bilateral hearing loss disability was not shown in service or within one year of the Veteran's discharge from service, and the preponderance of evidence indicates that the current bilateral hearing loss is not related to service, to include noise exposure during service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1962 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In an August 2017 decision, the Board reopened the claim for service connection for bilateral hearing loss and remanded the matter for additional development. The Board also remanded the claim in September 2019 and December 2020. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107(a) (2). A September 2019 Board decision granted service connection for tinnitus. As the benefit sought on appeal, service connection for tinnitus, has been granted, the issue is no longer before the Board. 1. Service connection for bilateral hearing loss Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For the purposes of applying the law administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). VA assumes that hearing tests conducted prior to January 1, 1967 were conducted using the American Standards Association (ASA) units rather than under the currently utilized International Standards Organization-American National Standards Institute (ISO-ANSI) units. Where necessary to facilitate data comparison for VA purposes between the two standards, VA has determined that it is appropriate to convert ASA measurements to ISO-ANSI measurements. In light of the above and in order to facilitate data comparison in this decision, the Board has converted audiometric data originally recorded using ASA standards to ISO-ANSI standards by adding 15, 10, 10, 10, and 5 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The Veteran asserts, in essence, that his current bilateral hearing loss is related to noise exposure during service as a fire protection specialist with a crash and rescue unit while working on a flight line in close proximity to aircraft during take-off and landing and during aircraft maintenance with engines running full throttle without wearing ear protection. He also asserted that he received treatment during service for external otitis; that his hearing loss progressively worsened since service; and that he worked in the railroad industry as a brakeman for 32 years, during which he wore hearing protection and was determined to be able to continue working. See April 2017 Board hearing transcript and January 2006, April 2007, December 2010, May 2012, April 2017 and January 2021 statements. In October 2006, he also asserted that service connection is warranted based on a history of deteriorating hearing during service because hearing conservation examinations from 1963 to 1966 show he lost some hearing. He additionally testified in April 2017 that he did not have his hearing tested after service until "years" later, although he could not pinpoint the date; that, other than during VA examinations associated with his service connection claim, he has not sought or received VA or private treatment for hearing loss, although he received medical care for other conditions; and that he does not presently wear hearing aids. Lay statements submitted in April 2007 and September 2009 by the Veteran's family and friends, including his son, former wife, current partner, brother, brother in-law and a friend, report that they observed the Veteran complain of hearing problems since service; that his hearing worsened since service; and that the Veteran related his hearing problems to his military duties. See March 2007, April 2007, April 2007, April 2007, September 2009, September 2009 and September 2009 statements. During VA examinations in March 2005, November 2010 and May 2019 and a private audiology examination in November 2006, the Veteran reported he had "some" hearing loss when he was discharged from service; did not recall having a hearing test at the time of his discharge; denied a history of ear pain, ear drainage, ear infections and ear surgery; reported an occupational history of working as a brakeman and conductor for Norfolk & Southern for 32 years; and denied recreational noise exposure. The Board notes that in February 2010 and December 2020, VA requested that the Veteran complete and submit VA Form 21-4192, Request for Employment Information, to include providing the names and addresses of all employers who administered post-service occupational hearing evaluations. While the Veteran submitted a VA Form 21-4192 in January 2021, he did not fully complete the form or identify the names of his prior employers, as requested. As such, he did not assist in providing VA additional evidence that may have been relevant to his claim. The "duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, VA was unable to verify post-service occupational audiological test findings and the Board's decision will be evaluated on the evidence in the record. The record indicates that the Veteran is currently diagnosed with bilateral hearing loss, as shown on a May 2019 VA audiological examination, and military noise exposure has been conceded based on the Veteran's military duties. See June 2019 supplemental statement of the case. Thus, the question for the Board is whether the Veteran's current bilateral hearing loss began during service or within the year following discharge, has been continuous since service or is otherwise related to service, to include conceded in-service noise exposure. After reviewing the record, the Board finds that the preponderance of probative evidence is against the claim. The Veteran's service treatment records show no complaints, treatment or diagnosis pertaining to hearing loss. The Veteran's September 1962 entrance examination revealed normal hearing on a whisper test and the ears were normal during clinical examination; the Veteran denied ear trouble in the accompanying September 1962 entrance report of medical history. During service the Veteran underwent three audiological evaluations, specifically in August 1963, July 1966 and August 1966; however, none document a hearing loss disability for VA purposes. To facilitate comparison, the Board has converted the measurements on these examination from ASA units to ISO (ANSI) units. During the August 1963 examination, the Veteran denied hearing loss or ear injury, aural pain, drainage or other medical history and reported that he always or frequently wore ear protection. Audiometric testing showed pure tone thresholds for the right ear of 20, 15, 25, 15 and 10 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, and for the left ear of 15 decibels at the same frequencies. During the July 1966 separation examination, the Veteran denied ear trouble and reported he was in good health. Audiometric testing showed pure tone thresholds for the right ear of 25, 20, 15, 20 and 10 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, and for the left ear of 20, 15, 15, 20 and 5 decibels at the same frequencies. During the August 1966 audiological evaluation, the Veteran reported four years of aircraft noise exposure without hearing protection. Audiometric testing showed pure tone thresholds for the right ear of 25, 20, 25, 25 and 20 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, and for the left ear of 35, 25, 20, 25 and 20 decibels at the same frequencies. While service treatment records in October 1964 and on three occasions over a one-week period in August 1966 reflect complaints and findings relating to left ear pain and left external otitis, they do not document any symptoms or findings pertaining to hearing loss. In this regard, the October 1964 service treatment record shows complaints of left ear pain for 2 days with no drainage and impression of left ear external otitis. Two years later, an August 1966 treatment shows complaints of left ear pain since that morning with no drainage and impression of external otitis. Treatment over the next week showed the left ear was aspirated three times and was responding well. One week later, in September 1966, the Veteran reported his left ear had improved and that he would return to the clinic, if necessary; no follow-up or subsequent treatment is in the record. The first indication that the Veteran met the criteria for a bilateral hearing loss disability pursuant to VA regulation at 38 C.F.R. § 3.385 was in 2005, when he underwent a March 2005 VA audiological examination conducted in connection with his 2004 claim for service connection for bilateral hearing loss. During the examination, the criteria for bilateral hearing loss were met based on pure tone thresholds of 26 decibels or higher at the 1000 through 4000 Hertz frequencies in each ear and diagnosis of bilateral sensorineural hearing loss. Since the competent evidence of record does not establish a bilateral hearing loss disability during service or within the year following service, competent evidence linking the condition to service is required to establish service connection. However, the record contains no medical evidence or opinion linking the bilateral hearing loss to service; rather, several VA opinions and a private medical opinion submitted by the Veteran are against linking the hearing loss to service. A March 2005 VA examiner opined that the Veteran's current bilateral hearing loss was less likely than not related to in-service noise exposure. She reasoned that service treatment records show the Veteran's hearing was normal during audiologic testing performed at the time of his July 1966 separation examination and that noise exposure during service did not cause the current hearing loss because hearing loss due to noise exposure occurs at the time of exposure and not subsequently. A November 2006 private audiologist opinion submitted by the Veteran concludes that the Veteran's current bilateral hearing loss was less likely than not related to service. She reasoned that the Veteran's 1963 entrance audiogram showed pure tone thresholds at 10 decibels or better; his July 1966 separation audiogram showed normal findings with all pure tone thresholds again at 10 decibels or better; and an August 1966 audiogram showed normal hearing bilaterally with all pure tone thresholds at 20 decibels or better; thus, as the record shows the Veteran entered service with normal hearing and continued to have normal hearing at separation, there is no evidence to support a link between the current hearing loss and service. A November 2010 VA examiner opined that the current bilateral hearing loss was less likely than not related to in-service noise exposure. She reasoned that service treatment records show no hearing loss at the time of his discharge examination and hearing conservation data from August 1963 to August 1966 showed normal hearing bilaterally with no more change in hearing than what would be considered natural progression. She explained that since hearing loss due to noise occurs at the time of exposure, not subsequently, it is less likely than not that the current hearing loss is related to any disease, event or injury during service, including acoustic trauma. She opined that, while the Veteran reported a history of left ear otitis and was treated in 1964 and 1966 for otitis, his current bilateral hearing loss is not the result of otitis externa, eardrum scarring or fluid during service, as his current hearing loss is sensorineural and not conductive. Following the Board's August 2017 remand, a May 2019 VA examiner determined that audiologic test results performed at the examination were not valid for rating purposes, as the Veteran's pure tone averages were not in agreement with his speech recognition thresholds, resulting in poor inter-test consistency and that the use of word discrimination scores was not appropriate for this Veteran due to the inconsistent word recognition scores. The examiner opined that the current bilateral hearing loss was less likely than not caused by or a result of in-service noise exposure. She reasoned that the Veteran's service treatment records document normal hearing bilaterally during audiometric testing in August 1963, July 1966 and August 1966, and while there was a bilateral ear threshold shift at the 500 Hertz frequency when comparing the 1963 examination with the August 1966 examination, she explained that this was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at the higher frequencies for either ear, as noise-induced hearing loss is known to affect higher frequencies first, before lower frequencies, and is not shown in this case. Following the Board's September 2019 remand, a December 2019 VA examiner opined that the current bilateral hearing loss was less likely than not caused by in-service noise exposure. He reasoned that there was not a permanent positive threshold shift (worse than the reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz in either ear, as the Veteran's July 1966 separation audiological evaluation showed his hearing was within normal limits, which indicates there was no effect from the ear infections during service. In support, he cited medical literature indicating that noise induced hearing loss will not progress once it is stopped. Following a December 2020 Board remand, a January 2021 VA examiner opined that the current bilateral hearing loss was less likely than not related to in-service noise exposure. She reasoned that, although significant noise exposure to jet aircraft is conceded, the objective evidence does not support any significant shift in the Veteran's hearing during service, specifically, from the time of the August 1963 audiological evaluation to the July 1966 separation examination. She further noted that, although an August 1966 hearing conservation evaluation indicated exposure to noise with no hearing protection, the 1966 audiological evaluation did not show a shift in hearing beyond test-retest reliability in the higher frequencies when compared to the 1963 examination and, instead, indicated a slight shift at the lower 500 Hertz frequency, which is not consistent with noise exposure. The examiner also noted that the 500 Hertz frequency was shown to have improved at the time of the Veteran's 2005 VA audiological examination. She also noted that the Veteran had significant occupational noise exposure working for a railroad and that, while the Veteran reported he had a hearing conservation program and was allowed to continue working, there were no audiograms in the record indicating that his hearing was impaired at the start of working for the railroad and the objective evidence in the record indicates his hearing was normal at separation. Further, citing medical evidence submitted by the Veteran in June 2019 that addresses delayed onset hearing loss, the examiner stated that the literature indicates that the mechanisms and processes involved in the recovery from noise exposure suggest that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. She also cited a medical study indicating that many factors contribute to age-related hearing loss, such as genetic predisposition and medical conditions and that noise exposure throughout a Veteran's lifetime, including traffic noise, smoke alarms, etc., would have to be considered in addition to any military noise exposure. The examiner also cited a medical study indicating that the use of animals and that another study indicated that mice and humans are two different species and generalized findings from rodent studies to human is fraught with difficulties and at best should be undertaken with great caution. Notably, the examiner commented that the Veteran's statements as to the onset of hearing loss may not be accurate, as the Veteran was documented at several VA appointments to be giving results inconsistent with organic hearing loss, as the Veteran would give responses indicating this his hearing thresholds were at a much louder level than on evaluations by a private audiologist. She noted that at the most recent VA examination, the Veteran responded with hearing loss in the severe to profound range and indicated he did not understand one word for the Maryland CNC lists; however, one month prior at a VA examination, after frequent reinstruction from the examiner due to responses indicating his hearing thresholds were at a much louder level than on examinations by a private audiologist, he was found to have mild to severe hearing loss with good speech discrimination for each ear. Addressing the Veteran's in-service ear conditions, the examiner opined that the current hearing loss was less likely than not related to ear treatment during service. She reasoned that the Veteran's hearing loss is sensorineural, not conductive (where the nerve is normal and conduction of sound from the outer ear to the nerve is impaired), and conductive hearing would be consistent with ear infections. She explained that the ear infections in service were deemed to be otitis externa (fungal infection of the ear canal), which does not impact hearing or the air drum or bones behind the ear drum, and the ear was responding well to treatment one week later. Thus, the examiner concluded that the evidence is against a nexus in this case. VA treatment records during the pendency of the appeal do not link the Veteran's bilateral hearing loss to service and the Veteran has not provided any medical evidence linking the hearing loss to service. In this regard, the Board notes that, other than the November 2006 negative private audiologist opinion discussed above, a June 2019 private audiogram submitted by the Veteran documents current bilateral hearing loss but does not address whether the current condition is related to service. The Board finds the January 2021 VA examiner's opinion is the most probative and entitled to significant weight, as it is based on an extensive review of the Veteran's medical and occupational history, to include notations to specific evidence in the claims file, and is supported by an articulated rationale for the conclusions reached that is consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The opinion establishes that the Veteran's bilateral hearing loss did not begin during service or within the year following discharge; that there is no evidence of a significant shift in the Veteran's hearing during service or continuity of symptoms since service; that the current hearing loss is not related to ear problems during service; and that the current hearing loss is less likely than not related to the conceded in-service noise exposure. The examiner cited medical literature to support the opinion. The Board acknowledges the one-page medical abstract submitted by the Veteran in January 2021, in which the authors conclude that B-52 and KC-135 aircraft maintenance personnel, with very few exceptions, are not exposed to potentially hazardous noise levels long enough to experience irreversible hearing loss when ear protective devices are worn. However, the Board finds this article is not probative or persuasive, as it does not discuss the facts specific to the Veteran's case nor link the Veteran's current hearing loss to service. See Sacks v. West, 11 Vet. App. 314, 317 (1998). The Board also acknowledges Veteran's statements and buddy statements asserting that the Veteran's hearing loss began during service; that an in-service audiogram shows diminished hearing; that his hearing problems were observed by family and friends shortly after he was discharged and persisted since service; that his hearing loss is related to ear infections during service; and that a nexus may be established based acoustic exposure during service. While the Veteran is competent to report that he had diminished hearing during service and in the years following service, he is not competent to assert that he had a hearing loss disability or that he met the criteria for hearing loss per VA standards at any time during service or following his discharge from service. The Board notes that it is sensorineural hearing loss (as an organic disease of the nervous system), not a subjective complaint of a decrease in hearing acuity, that is considered a chronic condition pursuant to 38 C.F.R. § 3.309(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). In this case, the medical evidence shows the Veteran's hearing was within normal limits during service, including on the three audiological evaluations performed in 1963 and 1966, and a bilateral hearing loss disability was not shown to have manifested until decades after service. While the Veteran was treated for ear infections and otitis externa during service, none document complaints of hearing loss, and the service treatment records do not otherwise reflect any complaints or findings related to hearing loss. Although the Veteran stated that he did not recall undergoing an audiological evaluation at the time of discharge and that he experienced symptoms of hearing loss during service, the record shows that audiograms were performed in July 1966 and August 1966 prior to his September 1966 discharge, which the Board finds dimmish the reliability of the Veteran's recollections regarding the onset of symptoms. Further, the Veteran testified at the 2017 Board hearing that he did not seek treatment for hearing loss at any point prior to filing his claim for service connection and stated in January 2006 that his prior employer for 32 years determined that he was able to continue working based on audiological evaluations performed by the employer, which suggest that hearing loss was not present until many years after service. Moreover, the Veteran did not provide information requested by VA to verify audiological test results performed by his prior employer of 32 years. Thus, the Veteran's contentions that he experienced hearing loss during and since service are not probative or persuasive. See Madden v. Gober, 125 F.3d at 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The Board finds the medical evidence contemporaneous to service to be significantly more persuasive and probative than statements the Veteran and his family and friends made to VA for purposes of seeking compensation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records is a factor that the Board can consider and weigh against a veteran's lay evidence). Moreover, medical testing and expertise are needed to determine whether actual hearing loss exists. There is no indication in the record that the Veteran has specialized training sufficient to diagnose hearing loss or determine its etiology, and he testified in 2017 that he is not a medical doctor and does not have specialized medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In this case, a hearing loss disability was not noted in service and the Veteran's assertion that he had diminished hearing since service likewise does not establish the presence of a hearing loss disability during that time. In sum, the preponderance of competent and probative evidence is against finding that the Veteran's bilateral hearing loss manifested in service or within one year after discharge, or is otherwise related to service, and the claim for service connection for bilateral hearing loss is denied. In reaching this decision, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.