Citation Nr: 21039789 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-03 550A DATE: July 1, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's left ear hearing loss began during his active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1975 to May 1978 and from October 1981 to June 1984. The Board remanded this issue in January 2021. In relevant part, the remand directed the regional office (RO) to obtain an addendum opinion as to the Veteran's claimed left ear hearing loss in consideration of his reported in-service noise exposure, to include whether the left ear hearing loss may be the delayed result of that noise exposure. Pursuant to the remand, the RO obtained an opinion in March 2021 that is consistent with and responsive to the January 2021 remand directives and that is otherwise adequate for decision-making purposes. Accordingly, the Board finds that VA at least substantially complied with the January 2021 remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The January 2021 remand also included the issue of entitlement to service connection for pseudofolliculitis barbae. However, that benefit was granted in full in a March 2021 rating decision. Therefore, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Entitlement to service connection for left ear hearing loss The Veteran seeks entitlement to service connection for left ear hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the thresholds for at least three of these frequencies are 26 dB 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 has left ear hearing loss that is due to in-service exposure to noise from M-16s, hand grenades, Vulcan machine guns, and military aircraft and vehicles. The Veteran's DD Forms 214 show that he had a primary specialty of short range gunnery crewman and that he earned badges in M-16 rifles and grenades. Therefore, the record supports his assertion that he was exposed to noise during his active service, and the question for the Board is whether the Veteran has a current left ear hearing loss disability that began during service or is at least as likely as not related to the in-service exposure to noise. In this case, the Board concludes that, although October 2018 and March 2021 VA examination revealed a left ear hearing loss disability as defined in 38 C.F.R. § 3.385, and the evidence supports the Veteran's assertion that he was exposed to noise during his active service, the preponderance of the probative evidence weighs against finding that the Veteran's left ear hearing loss began during his active service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a), (d). Specifically, the Veteran's service treatment records do not reflect any complaint of or treatment for hearing loss during his active service. Reports of medical examination dated in April 1978, August 1981, and April 1984 do not show a hearing loss disability. The Veteran told the March 2021 VA examiner that during his active service he was exposed to noise from M-16s, hand grenades, Vulcan machine guns, 2.5 ton trucks, F-15 Eagles, F-4 Phantoms, E-5s, C-130s, C-160s, and helicopters. The examiner stated that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6,000 Hz in the left ear during the Veteran's active service. The examiner opined that the Veteran's left ear hearing loss is not at least as likely as not caused by or a result of an in-service event. As a rationale for that opinion, the examiner explained that there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active service from noise. Although in-service noise exposure is conceded and the relationship between noise, auditory damage, and hearing loss is well established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The Board accepts the March 2021 VA examiner's opinion as probative evidence that the Veteran's current left ear hearing loss is less likely than not related to his in-service noise exposure. The examiner explained that there was no significant permanent shift in the Veteran's hearing acuity during his active service. The examiner further explained that noise exposure alone is not enough to establish auditory damage and hearing loss. The Board interprets the examiner's statements as meaning that, because there is not a showing of actual auditory damage or hearing loss during the Veteran's active service, the current left ear hearing loss cannot be attributed to the in-service noise exposure to a degree of 50 percent probability or greater. The Board acknowledges the Veteran's assertions made in correspondence received in April 2019, on a November 2019 VA Form 9, and in correspondence received in April 2021 that he was treated for left ear pain and hearing loss in December 1982. A review of the service treatment records reveals that in early December 1982, the Veteran reported a cold with pains behind the left ear, especially when bending over. On examination, he had mild neck spasm. He was assessed with an upper respiratory infection and was provided with cold treatments. Approximately two weeks later, he was seen again for complaints of head pains behind the left ear. He was assessed with an upper respiratory infection and cervical strain. There are no further treatment notes documenting complaints of pain in the ear area. The Board concludes that the service treatment records do not show treatment for ear pain or hearing loss. Rather, the treatment in December 1982 was for an upper respiratory infection and for cervical strain. Although the Veteran reported pain behind the left ear, there is no indication of any complaint of pain in the actual ear or of hearing loss, and there was no abnormality of the ear on examination. Accordingly, Board finds that the treatment provided in December 1982 does not reflect an in-service injury or disease of the left ear or in-service left ear hearing loss. The Board further acknowledges the Veteran's assertions that his left ear hearing loss is due to exposure to noise during his active service. However, the Veteran is not considered competent to render an opinion on a complex medical issue such as the likely etiology of his left ear hearing loss, as doing so requires medical knowledge and expertise he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements are not probative and do not weigh against the value of the March 2021 VA examiner's opinion. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for left ear hearing loss. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.