Citation Nr: 21039803 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-13 452 DATE: July 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing is in the Veteran's file. In July 2019, the Board issued a decision denying entitlement to bilateral hearing loss. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By a July 2020 Order, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board's July 2019 decision and remanded the case for action consistent with the JMR. The Board, in turn, remanded the claim to the agency of original jurisdiction (AOJ) in January 2021 to comply with the Court-granted JMR. That further development has since been completed, so now this claim is again before the Board. Entitlement to service connection for hearing loss The Veteran contends that he suffers from bilateral hearing loss that is the result of noise exposure during military service. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including other organic diseases of the nervous system, which includes sensorineural hearing loss, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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 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. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board concedes that the Veteran's current bilateral hearing loss meets the requirements for VA hearing loss. The Board acknowledges that the Veteran has a current disability and that the Veteran was exposed to the noise generated by the equipment with which he worked in service. Thus, the question is whether there is a nexus between current disability and service. Service treatment records shows normal hearing at the August 1972 pre-induction audiogram with auditory thresholds in the right ear of 25, 20, 10, and 25 and left ear of 15, 20, 20 and 10 at 500, 1000, 2000 and 4000 Hertz, respectively. The auditory thresholds at the December 1975 separation examination in the right and left ear were 15, 10, 5, and 0 at 500, 1000, 2000 and 4000 Hertz, respectively. At the 2019 Board hearing, the Veteran's representative stated the Veteran's shift in threshold worsened from induction to separation. In fact, the audiograms demonstrate that the Veteran's hearing thresholds improved during service. The Veteran submitted private medical treatment records from Allina Medical Clinic. At a January 2015 audiology consultation, the Veteran reported hearing difficulty for many years. The audiologist, Dr. D.S, noted he had a history of excessive noise exposure, including truck driving and guns and a positive family history for hearing loss. In February 2015, she referred the Veteran to Dr. S.K., an ENT physician, for medical clearance for hearing aids. The Veteran complained of gradual hearing loss over a period of years. Dr. S.K noted there was a lot of noise exposure in the past, especially using long guns, right-handed. He opined that the Veteran had noise-induced hearing loss and recommended ear protection for any more noise exposure. The Board notes that while Dr. S.K. opined that the Veteran had noise induced hearing loss, especially from long guns, Dr. D.S. also noted excessive noise exposure from truck driving, which was the Veteran's post-service occupation. Therefore, the medical opinions do not provide an adequate nexus to noise exposure in service as the extent of post-service versus in service noise exposure is unclear. The Veteran also submitted a medical article entitled "Acceleration of age-related hearing loss by early noise exposure: evidence of a misspent youth," which addresses age related hearing loss from previously noise damaged ears in mice. The authors, Kujawa and Liberman, suggest that pathologic but sublethal changes initiated by early noise exposure render the inner ears significantly more vulnerable to aging. In the December 2015 VA examination, the VA examiner opined that the Veteran's hearing loss was less likely as not caused by or a result of military noise exposure. The examiner's rationale was based on normal hearing bilaterally on the separation audiogram and no evidence of a significant shift in thresholds from induction to discharge. In a VA addendum opinion from October 2016, the examiner addressed the Kujawa and Liberman article submitted by the Veteran and noted there are genetic and physiologic differences between humans and rodents which reduced the value of the translational research the article described. The examiner also noted the 2006 Institute of Medicine (IOM) report regarding effects of noise exposure, which stated the following: "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The examiner provided a list of medical research articles supporting her statements. The JMR considered the October 2016 VA examiner's reasoning in discounting the 2006 Kujawa study contradicted the 2006 IOM report which states that studies on animals were valid but had just not yet been performed or were insufficient at the time it was written. Further, the JMR considered the October 2016 VA examiner's reasoning conflicted with the Court's finding in McCray v. Wilkie, 31 Vet. App. 243, 253 (2019). The Board acknowledges the Court's decision in McCray v. Wilkie that discusses the IOM report containing unfavorable findings as well as apparently contradictory findings regarding delayed-onset hearing loss. In McCray, the Court noted that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if an issue is raised by the veteran or reasonably raised by the record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. And, if the Board requires assistance in understanding or interpreting the underlying medical text evidence, it may seek clarification from the medical expert who wrote the opinion or from another source. The Board remanded the claim for a clarifying medical opinion to address the concerns raised by the JMR. In an April 2021 VA examination report, it was noted that while there was noise exposure in service, the evidence shows there was no noise injury in service. She noted the most pronounced effects of a given noise exposure are measurable immediately after the exposure. The examiner reasoned that if the evidence shows there has been no significant threshold shift beyond normal measurement variability while in service, there was no hearing injury while in service, and any hearing loss occurring following service is less likely as not caused by or a result of noise exposure while in service. The examiner noted many factors can contribute to hearing loss following service such as recreational, occupational, environmental noise exposure, aging, disease, medications, environmental pollution, genetic/hereditary factors, smoking, etc. Audiograms provide objective evidence of noise injury. In the absence of objective audiometric evidence of noise injury while in service, an affirmative opinion that the Veteran suffered some latent undiagnosed noise injury is utter speculation and directly contradicts the objective evidence of record. Regarding the discrepancy in the IOM report, the examiner stated that the IOM study was commissioned by Congress to, among other issues, address the question "is there delayed onset hearing loss due to previous hazardous noise exposure?" The authors (Kujawa and Liberman) specifically questioned the conclusions of the IOM report noting that the lack of delayed threshold shifts after noise exposure "has been taken as evidence that delayed effects of noise do not occur." The examiner, however, noted that the delayed affect to which the IOM report was referring was hearing loss. Therefore, the authors (Kujawa and Liberman) misquoted the IOM report. IOM did look at animal studies and discussed Mills et al. (1997) at length since it addressed hearing sensitivity in exposed and non-exposed animals and found no difference over time. The examiner stated that VA Audiologists conducting Audiology C&P exams in the VA continue to review human and animal studies regarding delayed onset hearing loss. The conclusion after extensive consideration is that these studies, while important and elegant, do not overturn the conclusions of the IOM. The premise that delayed hearing loss occurs even with apparent recovery of hearing thresholds simply misstates the legal basis for disability and the conclusions of the Kujawa articles. These papers did not state that animals suffered delayed-onset hearing loss. In fact, hearing thresholds returned to normal. Therefore, given the above and given that the April 2021 VA clinician provided a thorough review of the record, that she took into consideration the Veteran's prior medical history and lay statements, and provided a sufficient rationale for the Board to evaluate the claim, the Board gives much probative weight to the April 2021 VA clinician's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board notes the Veteran's contention that he has had progressive loss of hearing since separation from active service. The Veteran is competent to report diminishing hearing over the years since service. However, although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the bilateral hearing loss, to include decreased hearing acuity, is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The ear condition here involves a pathological process and auditory measurement that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of origin of the diagnosed condition is a medical question requiring medical training, expertise, and experience. As such, the Veteran is not competent to provide a statement regarding etiology and his opinion in this regard lacks weight. Additionally, the Veteran's statements regarding the onset of the hearing loss are not competent to determine whether the Veteran's bilateral hearing loss manifested to a compensable degree during the year following service and lack weight. On the other hand, the April 2021 examiner, an audiologist with training in the field of hearing loss, has provided a thorough examination report that took into consideration the Veteran's lay statements and provided a sufficient rationale and addressed the inconsistencies in the IOM report for the Board to evaluate the claim. For the reasons stated above, the Board gives much weight to VA examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). (Continued on the next page) In sum, the Veteran has a current bilateral hearing loss disability for VA purposes and an in-service noise exposure during service, however there is not competent and probative evidence of a nexus between the current disability and his active military service. The preponderance of the evidence weighs against a finding for service connection for bilateral hearing loss. The benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.