Citation Nr: 21031264 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-37 963 DATE: May 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The objective medical evidence shows that the current disability of bilateral hearing loss is not caused by an event, injury, or illness during active service, nor is it etiologically related to it. 2. The objective medical evidence shows that bilateral sensorineural hearing loss did not manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to February1969. The Veteran was scheduled to appear at a hearing before the Board in August 2018. He failed to appear for the hearing and did not provide any good reasons for his failure to appear. As such, his hearing request is considered to be withdrawn. 38 C.F.R.§20.704(d). In September 2018, the Board remanded the appeal for further development to include a VA examination and nexus opinion. Pursuant to the Board's remand, another VA audiology examination was conducted in August 2019. The examiner opined that the Veteran's hearing loss in each ear was not at least as not caused by or a result of an event in military service. In support of her opinion she noted that the Veteran hearing within normal limits, bilaterally, at enlistment and separation of military service. She also noted findings from a 2006 Institute of Medicine (IOM) report which stated there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. In June 2020, the Board found the August 2019 opinion based on the IOM report to be inadequate and remanded the appeal for an addendum opinion to address inconsistencies regarded delayed onset hearing loss findings. The case has now returned to the Board following development for final review. Service Connection 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, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system and therefore a presumptive disability. For chronic diseases listed at 38 C.F.R. § 3.309 (a), service connection may also be established by chronicity and continuity of symptomatology. 38 C.F.R. § 3.303 (b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for bilateral hearing loss. For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 38 C.F.R.§3.385. The Veteran contends that he is entitled to service connection for hearing loss sustained from his time in service. After looking at the record, the Veteran's service treatment records (STRs) indicate that the Veteran has not sought treatment for or complained of hearing loss during service. VA treatment records from December 2014 indicate that the Veteran reported he was not experiencing "earaches, drainage, hearing loss or tinnitus." However, ata later screening examination in January 2015, the Veteran stated that he had experienced acoustic trauma from unprotected exposure to M-60 tank fire, small arms fire, track vehicles, and detonation of combat simulation explosives during service. In March 2015, the Veteran was provided with a VA audiology examination. The Veteran's Maryland CNC test scores were 20 percent in the right ear and 16 percent in the left ear. However, the examiner marked these results as invalid and stated that "[t]his Veteran's ability to easil[y] communicate with this examiner using normal conversational speech does not agree with his pure tone or speech discrimination results, positive Stenger results were found at 1K and. 5K Hz and this Veteran's immittance results did [not] agree with the pure tone results." Although the examiner indicated that Stenger results were positive at 500 and 1000 Hertz, and provided the results of other testing, he did not clearly explain whether there was an inconsistency in the higher Hertz levels or the importance of the other results described. The examiner also indicated the Veteran had sensorineural hearing loss, but he did not provide a clear opinion regarding whether any hearing loss was related to the Veteran's in-service noise exposure. The August 2019 VA examiner reiterated that the Veteran's hearing was within normal limits, bilaterally, at enlistment and separation of military service. Upon examination, the Veteran was found to show left ear with 96 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz) is 25, with a 25dB loss at 1000 Hz, a 30 dB loss at 2000Hz, a 30 dB loss at 3000 Hz, and a 60 dB loss at 4000 Hz. The right ear shows 96 percent speech discrimination. Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz) is 25, with a 25 dB loss at 1000 Hz, a 30dB loss at 2000 Hz, a 30 dB loss at 3000 Hz, and a 60 dB loss at 4000 Hz. While the August 2019 results above revealed that the Veteran had hearing loss disability for VA purposes, service connection still cannot be granted without a medical link between the Veteran's hearing loss and military service. The examiner opined that it is less likely than not that the Veteran's hearing loss is due to military noise exposure because a review of the record shows hearing within normal limits, bilaterally, at enlistment and separation. In addition, there is no evidence that the Veteran's hearing loss manifested within a year of his release from service. The examiner concluded that there was no evidence of a significant shift in hearing thresholds, nor was there evidence in the record that the Veteran sustained noise injuries based on audiograms. In sum, there is no basis to conclude that this hearing loss was causally related to military service. The October 2020 VA addendum opinion confirmed a current diagnosis of hearing loss. Consideration was adequately given to the entire claims folder including the Veteran's lay reports. This report, albeit by a different examiner fully complies with the directives of the Board's June 2020 remand. The 2020 examiner opined that it is less likely than not that the Veteran's hearing loss is related to his active military service. Echoing many of the sentiments of the August 2019 VA examiner's rating opinion, this examiner stated that even though the Veteran reports hearing loss in service, the medical records do not support the claim. The October 2020 examiner again pointed to the Veteran's February 1969 separation exam, where the Veteran checked "no" to hearing loss, and where separation hearing exams showed no significant hearing changes or hearing loss during service. The DD214 shows Army service as an Armor Crewman and therefore noise exposure in service is conceded. The 2006 IOM study first referenced by the August 2019 examiner concluded that based on current knowledge of cochlear physiology, there is insufficient scientific evidence for delayed-onset hearing loss secondary to military noise exposure. Hearing loss should occur at the time of the exposure. There is not sufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop long after cessation of noise exposure. The available anatomical and physiologic evidence suggests that delayed post-exposure noise induced hearing loss is not likely. If hearing is normal on discharge AND there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure. The October 2020 examiner adequately addressed the IOM study and validated its findings, reiterating that the audiogram is the gold standard to diagnose hearing loss and without abnormal findings on audiograms a hearing loss diagnosis is not given. The examiner believed that there were not any inconsistencies, and that it is not reasonable to agree to a claimed hearing loss in service here, when the evidence shows clearly that there was not only no hearing loss (normal hearing) but also shows that there were no significant hearing changes found. Conclusion In light of the evidence above, the Board finds that the evidence weighs against the claim for service connection for bilateral hearing loss disability. While the Board concedes that the Veteran does currently have a hearing loss diagnosis, the available evidence does not support a finding of hearing loss during service. Specifically, the audiology examinations of record did not show that the auditory thresholds in either of the Veteran's ears, in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz, had been 40 decibels or greater, or that the auditory thresholds for at least three of those frequencies in either ear were 26 decibels or greater during in-service testing. Based on the objective medical evidence generally and the findings and opinions of the August 2019 and October 2020 VA examiners in particular, the Board finds the Veteran's current disability of bilateral hearing loss is not caused by an event, injury, or illness during active service, nor is it etiologically related to it. The Board finds bilateral sensorineural hearing loss did not manifest to a compensable degree within one year of separation from active service. While the Board notes the Veteran might have been exposed to loud noises during service, the claimed "contradictory aspects or conclusions" of the IOM study by the Veteran and his representatives do not appear to be contradictory at all. There currently are no studies that have been completed that show delayed onset of hearing loss can occur after noise exposure ended. It is not a contradiction to say that the studies needed to prove or disprove delayed onset hearing loss have not been completed yet. If there are definitive studies in humans showing that delayed onset hearing loss occurs, those studies would become more important than the IOM study and would be used in medical opinions. Here, there is no nexus between any current hearing loss and military service, regardless of the cause of the hearing loss. Accordingly, the Board finds that there is no audiological evidence of record to support a claim for service connection for bilateral hearing loss disability. The preponderance of the evidence is against his claim for service connection. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012). MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Omosegbon, Babalakin O. 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.