Citation Nr: 21032432 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-35 794 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence establishes that the Veteran's current bilateral hearing loss is not etiologically or presumptively related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In June 2016, the Veteran filed VA Form 9, Substantive Appeal, and requested a Board hearing on this claim. In May 2019, the Veteran's attorney withdrew the Veteran's hearing request, and no additional hearing requests were received following the January 2020 Board remand decision. Accordingly, the Board may proceed with adjudication of this matter, without a Board hearing. The undersigned Veterans Law Judge has been assigned to adjudicate this matter pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). As to the matter adjudicated below, neither the Veteran nor his attorney has raised any issues with VA's duty to notify or VA's duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The undersigned's review of the electronic claims file demonstrates that the RO has substantially complied with the January 2020 Board remand directives and neither the Veteran nor his attorney have alleged otherwise. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board may proceed with its appellate review. In April 2020, the RO issued a Statement of the Case adjudicating claims seeking entitlement to an earlier effective date for the award of service connection and higher initial ratings for the Veteran's service-connected lumbar spine and bilateral knee disabilities. Regrettably, it was error for the RO to include a claim seeking entitlement to an earlier effective date for the Veteran's service-connected lumbar spine disability in the Statement of the Case, as this claim was not included in the July 2017 Notice of Disagreement, or in any other Notice of Disagreement within one year following the notification of the March 2017 notification letter addressing the grant of service connection for a lumbar spine disability. As a Notice of Disagreement is jurisdictional, the Board cannot consider the earlier effective date claim involving the Veteran's lumbar spine disability. Percy v. Shinseki, 23 Vet. App. 37, 44 (2009). Regarding all other claims adjudicated in the April 2020 Statement of the Case, the Veteran filed a timely VA Form 9, Substantive Appeal, in May 2020, where he requested a Board video hearing. These claims remain in appellate status awaiting the scheduling of a Board video hearing, and will be the subject of a future Board decision, if otherwise in order. If he so wishes, the Veteran may present additional evidence and argument regarding the earlier effective date claim for the lumbar spine, and he may further address this issue at the Board hearing. See 38 C.F.R. § 20.104(c) (formerly 20.101(d)). Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks entitlement to service connection for bilateral hearing loss, which he alleges was incurred during his active duty service, to include exposure to contaminated water at Camp LeJeune. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may be achieved if any applicable presumptive service connection regulations apply to the Veteran's circumstances. The current disability element of a service connection claim is not in dispute. The results of the June 2020 VA examination have confirmed the presence of bilateral hearing loss under 38 C.F.R. § 3.385 within the appellate period. Regarding in-service incurrence, the Veteran's service treatment records are negative for chronic hearing complaints. The audiograms conducted during the Veteran's active duty service showed normal hearing, and hearing was clinically normal at the September 1980 (conducted on August 27, 1980 but certified for completeness/accuracy on September 2, 1980) separation examination. In fact, when compared to the entrance audiogram, the separation audiogram showed better hearing in nearly every threshold at the relevant frequencies for each ear. The Veteran's service treatment records document an acute complaint of decreased hearing in the right ear in December 1978. Physical examination revealed a partial cerumen (earwax) occlusion in the left ear and a complete cerumen occlusion in the right ear. Efforts to irrigate the ear canals were unsuccessful and the Veteran was prescribed Debrox earwax removal medication. There were no further complaints of decreased hearing acuity or cerumen build-up in the service treatment records. The Veteran's military occupational specialty was a cook, and thus, he had a low probability of hazardous noise exposure or acoustic trauma during his active duty service, and he has not alleged any specific incidents of in-service exposure to loud noises. The Veteran has alleged that his current bilateral hearing loss is the result of in-service exposure to contaminated water at Camp LeJeune. A veteran who has no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a veteran served on Camp Lejeune during the time frame specified, the diseases of kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia, and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f). The diseases listed in 38 C.F.R. § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service to be eligible for presumptive service connection. 38 C.F.R. § 3.307(a)(7)(ii). The Veteran's personnel records establish that he was assigned to Camp Lejeune for more than 30 days during the pertinent period. Thus, he is presumed to have been exposed to contaminated water at Camp Lejeune. However, hearing loss is not among the eight listed conditions in 38 C.F.R. § 3.309(f), thus presumptive service connection cannot be granted due to qualifying Camp Lejeune service. The absence of a disease from the presumptive list does not preclude the Veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board will still consider whether entitlement to service connection can be granted on a direct basis for the Veteran's bilateral hearing loss. The January 2020 Board decision determined that the May 2011 VA medical opinion was inadequate for adjudicative purposes, and thus, no further analysis is warranted for this evidence. In the January 2020 decision, the Board remanded the claim for a VA examination and accompanying medical nexus opinion. The Veteran attended a VA examination in June 2020 and VA medical opinions were received in June 2020 and July 2020. The June 2020 VA examiner diagnosed the Veteran with right ear mixed hearing loss and left ear sensorineural hearing loss. The Veteran satisfied the regulatory definition of hearing loss in the right ear because his hearing acuity was 40 decibels at 4000 Hertz. 38 C.F.R. § 3.385. The Veteran satisfied the regulatory definition of hearing loss in the left ear because his speech discrimination score was 90. Id. The VA examiner certified that puretone and speech discrimination test results were valid and appropriate for rating purposes. At the June 2020 VA examination, the Veteran told the VA examiner that he was kicked in the head in 1977, with no loss of consciousness or bleeding from the ear. He was unsure of whether he experienced residual pain. The Board finds this lay statement to be at odds with the contemporaneous service treatment records. The Veteran's service treatment records are negative for any trauma to the head, and in fact, at the December 1978 treatment visit for cerumen build-up (after the alleged 1977 attack), it was noted that the Veteran specifically and affirmatively "denied any blows to side of head or trauma." Given their contemporaneous nature, the Board affords more probative value to the Veteran's service treatment records, than statements rendered decades later in an attempt to secure VA service-connected compensation benefits. See generally Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran); see Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (pecuniary interest may affect the credibility of testimony). The VA examiners who issued the June 2020 and July 2020 VA medical opinions reviewed the electronic claims file, but declined to link the Veteran's current bilateral hearing loss to his active duty service, to include exposure to contaminated water at Camp Lejeune. While the June 2020 VA examination report initially states that "no separation hearing test [was] reviewed in [the] service treatment records," the rationale provided by the June 2020 VA examiner clearly and accurately references the Veteran's September 1980 separation audiogram, proving the VA examiner did review such evidence. Thus, the Board finds the initial statement from the VA examiner that she did not have the Veteran's separation hearing test for review to be an inaccurate clerical error. In issuing a negative nexus opinion, the VA examiner explained that the Veteran's June 1977 enlistment examination showed normal thresholds at the tested frequencies of 500-2000 and 4000 Hertz, and the September 1980 exit audiogram showed normal hearing from 500-6000 Hertz, with no significant threshold shifts between service entry and discharge. In fact, the VA examiner noted that hearing thresholds at separation improved from those documented at service entrance. The VA examiner then cited several post-service treatment records from the mid-to-late 2000s where the Veteran explicitly denied the presence of hearing loss symptoms (aside from cerumen build up related complaints). The VA examiner posited that a gap of at least 30 years between service exit and the first signs of chronic hearing loss weighed against an etiological connection to service, and the Veteran's hearing loss was more likely the result of aging or post-military noise exposure. The June 2020 VA examiner further stated that ototoxicity monitoring is essential for obtaining a pathophysiological description of the effects of ototoxic agents on hearing loss over time, and while such monitoring was never conducted, there did not appear to be a concern for hearing loss or other ear-related symptoms in the Veteran's file until at least 2010. This temporal gap weighed against the conclusion that the Veteran's bilateral hearing loss was etiologically related to contaminated water exposure at Camp Lejeune. Another VA medical nexus opinion was obtained in July 2020. The VA examiner reviewed the relevant evidence and issued a negative nexus opinion. The VA examiner stated that the Veteran had a history of perceived hearing loss associated with impacted cerumen and ear infections. The Veteran also had risk factors of poorly controlled diabetes mellitus and advanced age. The VA examiner stated that scientific literature contained no good human studies of the effects of exposure to the Camp Lejeune volatile compounds on hearing loss. However, animal studies showed no adverse effects or low adverse effects from high concentrations of organic solvents over variable time periods. Thus, based on the Veteran's risk factors and the absence of support in the medical literature for a causative relationship between low level exposure to volatile organic compounds and hearing loss, the VA examiner opined that it was less likely than not that the Veteran's hearing loss was related to in-service exposure to contaminated water at Camp Lejeune. Viewed collectively, the Board finds the June 2020 and July 2020 VA medical opinions to be thorough, fully informed, and supported by explanatory rationales, sufficient to warrant a high degree of probative value in this appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The June 2020 VA examiner clearly explained that the Veteran's hearing measurements were normal during service and showed improved hearing between service entrance and separation. The VA examiner noted that there were no major hearing-related complaints until at least 2010. While the post-service records do contain an isolated report of right ear hearing loss in April 2008, this was attributed exclusively to cerumen impaction. The record otherwise shows several Review of System notations where the Veteran denied the presence of subjectively perceived hearing loss throughout the mid-to-late 2000s. Thus, the June 2020 VA examiner was correct in her assessment that the record documented at least a 30-year gap between service discharge and the first complaints of chronic hearing loss. The Board finds the June 2020 VA examiner's medical nexus opinion to be based on an accurate factual premise that is supported by record evidence. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Similarly, the July 2020 VA examiner's negative nexus opinion declining to link the Veteran's hearing loss to in-service exposure to contaminated water at Camp LeJeune was supported by an explanatory rationale based on sufficient facts and data and was the product of dependable principles and methods applied reliably to the Veteran's particular circumstances. Nieves-Rodriguez, 22 Vet. App. at 302. The VA examiner cited the medical research he relied on, and it is consistent with his espoused opinion. As such, this medical opinion is entitled to significant evidentiary weight in this decision. The Board has considered the lay evidence in this appeal, but does not find it to be probative. To the extent that the Veteran has attempted to link his current bilateral hearing loss to in-service exposure to contaminated water at Camp Lejeune, he is without the medical training and expertise to issue competent opinions involving complex medical matters, such as the etiology of his bilateral hearing loss and any pathophysiological relationship to his service. As such, his lay-reported nexus statement is entitled to no probative value in this appeal. See May 2012 lay statement. The Board has also considered the October 2010 lay statement from the Veteran's spouse where she opined that the Veteran's exposure to the contaminated water at Camp Lejeune contributed to mental and physical decline. While the Board acknowledges that the Veteran's spouse is a registered nurse, this testimony is too vague and nonspecific in nature to positively support the claim, and it is unsupported by a thorough explanatory rationale. As such it is entitled to little evidentiary value. Further, the Board finds the Veteran to be an unreliable historian in this matter. In the September 2010 VA Form 21-526 claims application, the Veteran alleged that his bilateral hearing loss began in January 2000; yet in a May 2012 lay statement, the Veteran reported that his hearing issues began during his active duty service. The inconsistency of these conflicting statements calls into question the Veteran's credibility. Further, aside from a single report of impacted cerumen related hearing loss in April 2008, the Veteran's post-service treatment records contain several affirmations from the Veteran denying the presence of hearing loss during Review of Systems assessments, and no reports of chronic bilateral hearing loss complaints until at least 30 years after the Veteran's separation from active duty. The United States Court of Appeals for Veterans Claims has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability); see also Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder (citing Fed. R. Evid. 803 (7))); see also AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Here, the Board finds the absence of symptoms and/or complaints in the post-service treatment records, to include the negative reports of hearing loss in the post-service Review of Systems, to be highly probative and contrary to the Veteran's inconsistent and non-credible reports of hearing loss that began during active service. The Board notes that the Veteran has also submitted several internet articles and medical literature discussing the volatile compounds found in the contaminated water at Camp Lejeune. Regarding hearing loss, the evidence merely indicated there was inadequate/insufficient evidence to determine whether an association with the volatile compounds existed. As such, this evidence is of null probative value in this appeal. In sum, the most probative evidence fails to demonstrate that the Veteran's current bilateral hearing loss was incurred during service or is otherwise etiologically related to the Veteran's active duty service, to include in-service exposure to contaminated water at Camp Lejeune. As the elements of direct service connection have not been satisfied and the elements of 38 C.F.R. § 3.307(a)(7) and 3.309(f) have not been met, service connection on these bases must be denied. Lastly, the Board acknowledges that hearing loss may be considered a "chronic disease" for the purposes of presumptive service connection consideration under the provisions of 38 C.F.R. §§ 3.303(b), 3.307(a)(3), and 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, having fully considered the record, the Board finds that the requirements for presumptive service connection have not been met. The weight of the medical and lay evidence does not show that the Veteran manifested chronic symptoms of hearing loss (as defined in 38 C.F.R. § 3.385 ) during service or to a compensable degree within the one-year period following discharge from service. Additionally, the Veteran's allegations of in-service incurrence of hearing loss have been determined to lack credibility, and the evidence does not show the presence of chronic hearing loss symptoms until at least 30 years following separation from service. Accordingly, service connection for bilateral hearing loss pursuant to the provisions of 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), and 3.309(a)) is not warranted on this record, and the claim is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante 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.