Citation Nr: 21032872 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-31 757 DATE: May 28, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran has a current right ear hearing loss disability. 2. The Veteran had noise exposure during combat in active service. 3. The Veteran's pre-existing right ear hearing loss was not aggravated during his active service. CONCLUSION OF LAW The Veteran's right ear hearing loss preexisted active service and was not permanently aggravated by his active service. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision. The Board denied reopening the Veteran's claim for service connection for right ear hearing loss in an October 2018 decision. The Veteran appealed the Board's decision and in a July 2019 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a June 2019 joint motion for remand (JMR), vacated the Board's decision to the extent it determined that new and material evidence had not been received to reopen the claim for service connection, and remanded the case for further action consistent with the terms of the JMPR. Since that time, the Board reopened the claim and remanded for a new examination and opinion. In Carter v. Shinseki, the Court held "when an attorney agrees to a joint motion for remand based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion." 26 Vet. App. 534, 54243 (2014), rev'd on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). The Board has done so here. See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (declining to consider a duty to assist argument because the appellant failed to raise the issue to the Board); Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to service connection for right ear hearing loss is denied. The Veteran states that he was exposed to artillery, small arms fire, diesel engine noise, and general combat noise while in the Republic of Vietnam during his active service. The Veteran also stated that he was afforded a hearing examination upon separation from active service that showed hearing loss, but he signed a release indicating that he would not hold the Army responsible for the hearing loss or he would have to remain in service for a longer period of time. See March 1999 Written Statement. He advised that he signed the release and he did not seek medical treatment for this problem until February 1998. Id. For the following reasons, the Board finds that the criteria for service connection for the Veteran's right ear hearing loss have not been met. Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including hearing loss as an organic disease of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). Id. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss as an organic disease of the nervous system if the disease manifested to a certain degree within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Every veteran is presumed to have been in sound condition when he or she was examined, accepted, and enrolled for service, except as to defects, infirmities, and/or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). When a defect, infirmity, or disorder is noted on a claimant's entrance examination, he or she has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the claimant demonstrates an increase during service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. 38 U.S.C. § 1153. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A current right ear hearing loss disability is established. In this regard, impaired hearing is defined as a disability for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, the January 2016, December 2016, and January 2020 Hearing Loss and Tinnitus Disability Benefits Questionnaires reflect either puretone threshold results from audiometric testing higher than 40 degrees at one or more of the relevant frequencies or 26 decibels or greater for at least three of the relevant frequencies. Accordingly, the criteria for a current right ear hearing loss disability are satisfied. See 38 C.F.R. § 3.385. The Veteran's claims folder reveals that he sustained noise exposure during his active service. The Veteran advised that he was exposed to artillery, small arms fire, diesel engine noise, and general combat noise while in the Republic of Vietnam. See June 2001 VA Audio Examination. The Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In further support, the Veteran's service personnel records provide that he participated in combat training and his Certificate of Release or Discharge from Active Service, DD Form 214, indicates that he was awarded the Vietnam Service Medal with one Silver Service Star, Army Commendation Medal with one Oak Leaf Cluster, and Vietnam Campaign Medal. Therefore, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. In describing what he experienced during his active service, the Veteran's statements have been internally consistent, facially plausible, and consistent with other evidence contained in his claims folder. Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board finds the Veteran's account of experiencing in-service acoustic trauma and auditory symptomatology to be credible and consistent with the circumstances, conditions, and hardships of his service. See 38 U.S.C. § 1154(b). Regarding the relationship between the Veteran's current right ear hearing loss and his active service, his service treatment records indicate that on enlistment, April 1968 audiometric findings showed a pre-existing right ear hearing loss. In particular, the Veteran demonstrated right ear hearing puretone thresholds of 5 dB at 500 Hertz, 5 dB at 1000 Hertz, 5 dB at 2000 Hertz, and 50 dB at 4000 Hertz. Thus, the Veteran had impaired hearing of the right ear for VA purposes noted at the time of his entrance examination. See 38 U.S.C. § 3.385. Because the Veteran's right ear hearing loss was noted upon entrance, the Veteran must show that his condition worsened in service. If the Veteran makes such a showing, the burden shifts back to the VA to show by clear and unmistakable evidence that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). During the Veteran's active service, he had a hearing loss profile. An October 1970 annual examination showed puretone thresholds for his right ear of 5 dB at 500 Hertz, 10 dB at 1000 Hertz, 0 dB at 2000 Hertz, and 50 dB at 4000 Hertz. The Report of Medical History at separation indicates that the Veteran reported hearing loss. Upon separation, a January 1971 audio examination showed puretone thresholds for the right ear of 0 dB at 500 Hertz, 0 dB at 1000 Hertz, 0 dB at 2000 Hertz, and 0 dB at 4000 Hertz. As the Veteran's audio examinations during his active service and upon separation show similar or improved puretone thresholds, there is no indication that his right ear hearing loss worsened during his active service. In further support, an October 2020 medical opinion provides the worsening of the Veteran's hearing on more recent audio examinations as compared to his 1970 examination is most likely due to more than 40 years of age-related hearing changes. The medical opinion cites to "The Noise and Military Service: Implications for Hearing Loss and Tinnitus, Executive Summary 2006," to demonstrate that it is unlikely that permanent noise-induced hearing loss can develop later in life after the cessation of noise exposure. The Veteran's hearing changes were found many years after service ended, which is consistent with changes due to aging or other factors outside of military service. While noise exposure is conceded during the Veteran's active service, there were no significant hearing changes found in service, and the Executive Summary conclusion provides that it is unlikely delayed onset of hearing loss can occur. Therefore, it is less likely than not that the Veteran's hearing loss was a result of military noise exposure. A January 2020 medical opinion concludes that the Veteran's pre-existing right ear hearing loss was not aggravated by his active service. In support, the Veteran entered into service with pre-existing right ear hearing loss 50 dB 4000 Hertz and exited service with no permanent significant threshold shift. A March 2013 medical opinion reached the same conclusion supported by similar reasoning. The Board finds the determination of the January 2020 and October 2020 examiners, concerning the relationship between the Veteran's pre-existing right ear hearing loss and his active service to be especially probative. The findings are underpinned by sufficient rationale, and consider his in-service noise exposure and audio examinations, post-service treatment, and supporting medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rationale or underlying reasoning). The Veteran's attorney challenged the competency of the January 2020 and October 2020 examiners. If a challenge to the competency of a medical examiner is raised, the Board must make a factual finding as to whether the medical examiner is competent. The challenge must be more than a general assertion that an examination or opinion is inadequate and must be raised by a claimant in the first instance. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (en banc). In particular, the Veteran's attorney stated that the January 2020 and October 2020 examiners lack the education, training, and qualifications to issue a decision on case with such a complex medical history. In support, the Veteran's attorney advised that the January 2020 examiner obtained a Master's of Speech-Language Pathology in 1992, but a Doctorate of Audiology has become the standard entry level degree required to practice audiology. The October 2020 examiner received a Doctor of Audiology in 2011, but is not a Fellow the American Academy of Audiology and is not ABA certified. However, the Veteran's attorney does not argue, and there is no other evidence contained in the claims folder that the examiners are not state-licensed audiologists, which the requirement for examiner contained in 38 C.F.R. § 4.85. Further, the January 2020 and October 2020 examination reports contain the examiner's state licensing information. Therefore, the Board finds that the January 2020 and October 2020 examiners are competent to opine as to the nature and etiology of the Veteran's hearing loss. The Veteran's claims folder contains a September 2014 private medical opinion that provides his bilateral high frequency sensorineural hearing loss is noise-induced and more likely than not related to noise exposure during his active service. However, the Board affords the medical opinion no weight as the conclusion is not supported by an analysis of the Veteran's medical history, in-service noise exposure, relevant medical literature, or the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). The Veteran's claims folder also contains a December 2016 medical opinion that states the Veteran's right ear hearing loss is at least as likely as not related to noise trauma in the military due to explosions during combat. The medical opinion also provides that there are no in-service audio examinations located in the Veteran's claims folder and he did not have hearing loss prior to service. The Board affords the December 2016 medical opinion no weight as it is based on inaccurate factual premises. See Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative); Madden, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Veteran's service treatment records demonstrate that he was provided audio examinations during his active service and he had right ear hearing loss upon entry. Furthermore, while the Veteran is competent to attest to symptoms he witnessed, the Board does not find his statements to be competent as to the etiology of his hearing loss. See Jandreau, 492 F. 3d at 1376-77. In contrast to the January 2020 and October 2020 examiners, the Veteran does not have a medical background and thus is considered layperson in the field of medicine. Layno, 6 Vet. App. at 470-71 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). Accordingly, the objective opinions of the January 2020 and October 2020 examiners outweigh the Veteran's lay statements on this issue. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may properly find a medical expert's opinion more probative than a lay opinion); Madden, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In sum, the preponderance of the evidence shows that the Veteran's pre-existing right ear hearing loss was not aggravated during his active service. As such, service connection for right ear hearing loss, based upon aggravation in service, is not warranted. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Because the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. EMILY TAMLYN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean Mussey, Associate 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.