Citation Nr: 21030647 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-01 354 DATE: May 19, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is denied. FINDING OF FACT A right ear hearing loss disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and there is insufficient competent and credible evidence that a right ear hearing loss disability was caused by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Air Force from April 1966 to March 1970. Entitlement to service connection for a right ear hearing loss disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. Certain diseases, to include organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran was diagnosed with a right ear hearing loss disability within one year of service the above provision is not applicable. 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. The Veteran contends that his current right ear hearing loss disability is the result of in-service noise exposure and/or exposure to jet fuel. Service personnel records show that the Veteran's Air Force duties were as a jet engine mechanic. As such, the Board finds the Veteran's assertions of exposure to jet fuel and acoustic trauma consistent with the circumstances of his service. The Veteran's service treatment records include no complaints, treatment, or diagnosis of a right ear hearing loss disability. Audiograms at entrance and prior to separation showed threshold shifts of 10 or more decibels at 500, 1000, 2000, and 3000. That said, hearing acuity remained within normal limits for VA compensation purposes. In a March 1970 Report of Medical History prior to separation the Veteran denied a history of hearing loss or ear trouble. After service, in October 2015 the Veteran sought treatment from VA for sudden right-sided complete hearing loss upon waking up about 3 weeks previously. At that time, the Veteran had drainage from the right ear. He had been treated with medication with no effect. He was diagnosed with unspecified hearing loss in the right ear. Test results showed profound hearing loss in the right ear. The Veteran was afforded a VA examination in December 2016. The examiner noted that the Veteran's duties as a jet engine mechanic carried a high probability of hazardous noise exposure. The Veteran reported an incident in 1969 when a B-52 bomber "came in and blew up. It was loud. The concussion knocked me down." At another Air Force base there were fighter jets taking off all the time while the Veteran and others were working on the flight line. The Veteran did not use hearing protection during service. In October 2015, the Veteran experienced a sudden sensorineural hearing loss. He was treated with steroids that did not help. The Veteran reported no hearing problems until the recent sudden decrease in right ear hearing acuity. The examiner documented threshold shifts at 500, 1000, 2000, and 3000 between entrance and separation from service. Following examination, the examiner concluded that it was not at least as likely as not that the right ear hearing loss disability was caused by or the result of service. The rationale stated, "Although Veteran's in-service audiograms show significant threshold shifts for both ears, hearing remained in the normal range at separation and he reports no hearing problems until experiencing a sudden sensorineural hearing loss in his right ear in October 2015. Veteran does not recall any trauma specific to his right ear in service, hearing thresholds for his left ear are still in the normal range, and this type of sudden idiopathic hearing loss seen in the right ear is not likely to be a result of military noise exposure." In support of his claim, the Veteran submitted an article from March 2014 entitled, "Exposure to jet fuel, not just noise, contributes to hearing problems." The article discussed the potential harm to hearing acuity due to JP-8 jet fuel. The article quoted a VA research scientist and audiologist who stated, "What we're seeing is that even at subtoxic levels, the exposure [from jet fuel] is affecting the brain and resulting in auditory processing dysfunctions." During his February 2020 Board hearing, the Veteran and his representative testified that there was a hearing threshold shift during service. He claimed in-service noise exposure from jet engines, oftentimes in an enclosed area. The Veteran testified that he noticed decreased hearing acuity at some point after his separation from service and that the hearing acuity decreased over time. Then he went to bed one night and woke up in the morning and his right ear hearing essentially was gone. An April 2020 VA examination addendum opinion considered the Veteran's treatise submission regarding jet fuel exposure and hearing loss. The reviewing audiologist noted review of the electronic claims file. The audiologist discussed the Veteran's report during his December 2016 VA examination that he had sudden onset hearing loss in October 2015 with no hearing problems prior to the event. The audiologist detailed the normal hearing acuity for VA purposes at entrance and separation from service. The audiologist concluded, "Considering the nature and configuration of hearing loss (sudden in 2015, right ear only), the hearing loss in the right ear is clearly not from exposure to jet fuel during service." Thus, the Veteran has a current right ear hearing loss disability for VA purposes. That said, the Board concludes that the right ear hearing loss disability had its onset multiple years after service and is not otherwise caused by service. In reaching that opinion, the Board finds the combination of the December 2016 VA examination report and April 2020 addendum opinion of significant probative value. The December 2016 examiner acknowledged the threshold shifts in hearing acuity between the audiograms at entrance into service and at separation, but concluded that given the Veteran denied hearing problems until sudden onset in 2015, could not recall any specific in-service acoustic trauma, and had no problems with his left ear hearing acuity, that this type of sudden idiopathic hearing loss seen in the right ear was not likely to be a result of military noise exposure. The April 2020 addendum opinion considered the Veteran's assertion that the hearing loss could be due to in-service exposure to jet fuel. The reviewing audiologist, however, concluded that the sudden onset nature of the hearing loss decades after service clearly demonstrated that the current right ear hearing loss disability was not from exposure to jet fuel in service. The Board finds the foregoing opinions the most probative evidence of record as to whether the current right ear hearing loss was incurred in or otherwise caused by service. In reaching that conclusion, the Board acknowledges the August 2020 submission of the Veteran's representative arguing that the April 2020 addendum "did not fully comply with the Board's request to reconcile to the extent necessary, the Veteran's submission regarding exposure to jet fuel contributing to hearing problems. The examiner mentions the jet fuel scenario but provides no information regarding a review of the article the veteran submitted that supports his contention." The Board finds that the April 2020 addendum opinion is adequate. The audiologist clearly considered the Veteran's contention of hearing loss due to in-service jet fuel exposure, but the audiologist concluded that due to the sudden onset hearing loss in 2015 in only one ear decades after service the hearing loss was unrelated to the in-service jet fuel exposure. The Board finds that this is an adequate explanation as to why the jet fuel theory was an unlikely cause of the right ear hearing loss. The Board's conclusion is supported by a review of the treatise evidence submitted by the Veteran, which does not specifically indicate that the hearing loss associated with the jet fuel exposure could occur decades after the exposure and in only one ear. As such, the Board finds the April 2020 opinion the most probative evidence of record. The Board has considered the March 2014 article submitted by the Veteran discussing the potential hearing damage due to jet fuel exposure, but finds that the conclusions are general in nature and specifically discounted by the above medical professional who considered the applicability of the study to the Veteran's right ear hearing loss disability (as discussed above). As such, the Board affords greater probative weight to the April 2020 medical opinion. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as hearing loss, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, neither hearing loss nor an organic disease of the nervous system was noted during service, including at the time of examination shortly before separation from active service. Indeed, prior to separation the Veteran explicitly denied a history of hearing loss or ear trouble prior to separation from service. Thus, while the Veteran claimed during his February 2020 Board hearing that he had gradually worsening hearing acuity from service, he specifically denied a history of hearing loss prior to separation from service and during his initial December 2016 VA examination he denied ongoing hearing problems from service. As such, the Board finds that there is no credible contention of a continuity of decreased hearing acuity or hearing loss from service. Thus, the provisions of 38 C.F.R. § 3.303(b) are not for application. As to the Veteran's general contentions that his hearing loss disability was incurred in or is otherwise caused by his service, the Board finds his opinions to be of limited probative weight. His report of some noise exposure during service is accepted as credible because it is consistent with his duties and circumstances of service. Although the Veteran is competent to report decreased hearing acuity, he has made inconsistent reports of decreased hearing acuity over time. As noted, he specifically denied a history of hearing loss immediately prior to separation from service and in October 2015 reported sudden onset hearing loss. He also reported sudden onset hearing loss in October 2015 at the time of his December 2016 VA examination. It was not until his February 2020 Board hearing that he alleged gradually diminishing hearing acuity over time. Even during the February 2020 Board hearing it is unclear whether the Veteran actually was claiming a continuity of problems from service, rather than simply decreased hearing acuity beginning at some indeterminate time after separation from service. Given these inconsistencies, the Board affords the Veteran's allegations of a continuity of decreased hearing acuity from service no probative weight. Given the absence of credible contentions of a continuity of symptomatology from service and the Veteran's lack of education, training, and experience in regards to diagnosing a hearing loss disability and relating such disability to noise exposure and/or jet fuel exposure occurring years prior to the diagnosis and onset of symptoms, the Board affords his representations as to a relationship between his current right ear hearing loss disability and in-service noise exposure extremely limited probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, no medical professional has found that the Veteran's right ear hearing loss disability was caused by to service. The lay evidence associating the right ear hearing loss disability to service is substantially outweighed by the medical evidence of record. In light of the evidence, the Board concludes that the preponderance of the credible evidence is against the right ear hearing loss claim, and that service connection for a right ear hearing loss disability is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.