Citation Nr: 21030452 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-00 218 DATE: May 18, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT A hearing loss disability was not manifest in service or within one year of separation from service and was not otherwise caused by the Veteran's active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from December 1967 to December 1970, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) from a June 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2019, the Board remanded this issue to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. To establish a right to compensation for a present disability, 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § § 3.303(b). 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. In addition to the above-noted legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that his bilateral hearing loss is the result of his military service. He reports that he was exposed to noise during service, including small arms fire, mortars, and heavy artillery shells. The Veteran's DD 214 notes his military occupational specialty (MOS) was a light weapons infantryman, with service in the Republic of Vietnam. In light of the Veteran's consistent statements and the evidence of record regarding his duties as a light weapons infantryman including in-service noise exposure from service in Vietnam with exposure to small arms fire and mortars, the Board finds credible evidence indicating an in-service injury. As such the Board concedes in-service noise exposure. The Veteran has also been diagnosed with a bilateral hearing loss disability. See May 2014 VA examination. The question for the Board is whether the Veteran's bilateral hearing loss began during service or is caused by service. The Veteran's service treatment records (STRs) are associated with the claims file. An audiogram at his entrance examination in December 1967 revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 15 (25) - 15 (20) LEFT 15 (30) 15 (25) 15 (25) - 15 (20) At separation on the audiological evaluation in November 1970 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 10 (20) 10 (20) 10 (15) LEFT 10 (25) 10 (20) 15 (25) 15 (25) 10 (15) Because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it related to VA examinations and VA records audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standards for evaluating hearing loss were not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385 audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the record data. The Veteran's in-service audiograms have been converted to ISO-ANSI standard above, in light of the uncertainty, and these values are reflected above in parenthesis. There is no indication that the Veteran reported any ear trouble or hearing loss while on active duty and his ears were determined to be normal at his separation examination in November 1970. The Veteran submitted private employment health records while he was employed for an air conditioning company. An audiological evaluation was performed when he was hired in March 1978. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 - - LEFT 10 0 30 - - He was retested in October 1978. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 15 30 35 LEFT 10 0 30 35 35 At his October 1978 audiological evaluation, the Veteran reported occasional firearm practice. He also reported ear trouble and an ear infection two years prior. Right ear hearing loss for VA purposes first appears in a private March 1982 audiological evaluation. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 20 35 40 LEFT 5 5 50 55 60 Private treatment records reflect bilateral hearing loss from this point forward. The Veteran attended a VA examination in May 2014. He reported working in a factory around loud machinery for 32 years following his separation from service, as well as occasional firearm practice. He reported using hearing protection. Following an examination and review of the claims file the examiner determined that the Veteran's hearing loss was less likely than not related to his service because there were no significant thresholds shifts during active duty. Instead, the examiner determined that the Veteran's hearing loss was likely due to the loud noise he was exposed while working in factory for 32 years, in conjunction with normal progression as related to his age. On his December 2015 VA Form-9, the Veteran objected to the findings of the May 2014 VA examiner and stated that his hearing loss was due to his service in Vietnam. He believed the March 1978 private employment health records supported his contentions because hearing loss was present prior to his employment at the factory. An addendum VA opinion was obtained in November 2019. The VA examiner noted that the Veteran's MOS meant that it was highly likely he had noise exposure in service. She determined that the Veteran's hearing loss was less likely than not due to his military noise exposure. She explained that the Veteran's hearing examinations during active duty did not reflect any significant changes in hearing thresholds greater than normal measurement variability. She cited to the Institute of Medicine (IOM), which determined that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure and that based on the understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. In August 2020 correspondence, the Veteran objected to the findings of the November 2019 VA examiner. He reiterated that he believed he was entitled to service connection for hearing loss because hearing loss was evident prior to working at a factory in 1978. He also reported in-service hearing loss but stated that he did not report it because he was young and "sucked it up." The Veteran submitted a private opinion in August 2020. The private audiologist stated that the Veteran's hearing loss likely resulted secondary to noise exposure. While she noted the Veteran's noise exposure in service, she did not state that the Veteran's hearing loss was likely a result from his noise exposure in service. It does not appear that the private audiologist reviewed the Veteran's claims file or was able to review his STRs. The audiologist mentioned the first measurement of hearing loss by the private employer in 1978 but did not discuss noise exposure in his occupation. The audiologist supported her opinion only by a statement that there is a known association between hearing loss and tinnitus. In the April 2021 Informal Hearing Presentation (IHP), the Veteran's representative argued that the November 2019 VA opinion was flawed because the examiner did not consider the Veteran's MOS in her opinion. The IHP also mentioned research studies which found that "although the loss of hearing seems to disappear, there may be residual long-term damage" to hearing. Both VA audiologists did acknowledge noise exposure in service as an infantryman and the 2014 audiologist noted noise exposure as a vehicle repair technician and his use of explosives in road building. VA treatment records have been associated with the claims file. VA treatment records note the Veteran had been seen for ongoing follow-up and maintenance of his hearing aids. These treatment records do not contradict the VA examinations and are absent indications of a relationship between the Veteran's bilateral hearing loss and in-service noise exposure. After consideration of all the evidence of record, the Board finds that the weight of competent and credible evidence is against finding that service connection for hearing loss is warranted. The Board concludes that service connection is not warranted as the Veteran's hearing loss did not begin during service and is not attributable to service. The Board finds the May 2014 and November 2019 VA opinions, taken together, to be highly probative. The examiners both reviewed the Veteran's claims file and noted his MOS. The examiners noted that the Veteran had normal hearing with no significant threshold shifts at the time of separation. The November 2019 VA examiner cited to IOM research to support her conclusion. The Veteran also had noise exposure following his discharge, as he reported firearm practice as a hobby. The Board considered the representative's challenge to the VA opinions with citation and paraphrase of the results of a study without submission of the study to the record for review. Nevertheless, VA audiologists are competent to include knowledge of research in their field and may form their opinions based on medical information that they find more persuasive and applicable in this Veteran's case. The Board finds that direct service connection is not warranted as the Veteran's current hearing loss is not caused by service. At separation in November 1970 on the report of medical examination audiological testing was within normal limits and clinical evaluation of the ears was normal. The Board has considered the August 2020 private opinion, but it does not appear that the private audiologist considered the Veteran's STRs or his firearm practice hobby in her opinion. The Board has also considered the April 2021 IHP but does not find the cited research that noise "may" cause residual long term damage to hearing to be as probative as the IOM research cited by the November 2019 VA examiner which determined that prolonged delay in the onset of noise-induced hearing loss was unlikely. The Board has considered the Veteran's contentions regarding the etiology of his hearing loss; however, the record does not reflect that he had the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In addition, the Board concludes that, while the Veteran has hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. A bilateral hearing loss disability was not "noted" during service or within one year of separation. See Walker, 708 F.3d 1331. Based on the probative evidence of record the Board finds that the Veteran's hearing loss did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. The Veteran's audiogram at separation does not indicate that a hearing loss disability was present in service. Furthermore, the Veteran has not introduced any probative evidence suggesting hearing loss prior to 1978, and his reported in-service hearing loss is contradicted by in-service audiograms. Private treatment records note the Veteran was not diagnosed with left ear hearing loss until 1978, and right ear hearing loss for VA purposes was not noted until 1982. This was nearly a decade after his separation from service and outside of the applicable presumptive period. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. As such, the Board finds that service connection for a hearing loss disability is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 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, 55-57 (1990); 38 C.F.R. § § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.