Citation Nr: 21039941 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-03 899 DATE: July 1, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. The probative evidence of record indicates the Veteran's left ear hearing loss is a result of service or is etiologically related to in-service noise exposure. 2. The Veteran does not have a right ear hearing loss disability as defined by VA law and regulations. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for left ear hearing loss has been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. 2. The criteria for entitlement to service connection for right ear hearing loss has not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1974 until his honorable discharge in October 1976, with additional service in the United States Army Reserve. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in April 2020, the Board remanded the issues of entitlement to service connection for hearing loss, a low back condition, and major depressive disorder, to the Agency of Original Jurisdiction (AOJ) for examinations and medical opinions. An April 2021 rating decision granted service connection for lumbosacral strain with degenerative disc disease (low back condition) effective August 17, 2012. A May 2021 rating decision granted service connection for major depressive disorder effective August 17, 2012. Therefore, these issues are no longer on appeal. The issue of entitlement to service connection for hearing loss is once again before the Board. The Board finds there has been substantial compliance with the April 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria for Service Connection Service connection may be granted for 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. Service connection may also 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). Generally, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include sensorineural hearing loss. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element three-part test under Shedden. Walker, 708 F.3d at 1138; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for any evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Dayne v. Nicholson, 20 Vet. App. 512, 516 (2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for left ear hearing loss. The Veteran contends his left ear hearing loss is the result of exposure to acoustic trauma during active duty service. Specifically, he attributes his hearing loss to his duties as a Food Services Specialist and other noise exposure during service and asserts his hearing disability has been continuous and worsened since that time. Impaired hearing is defined as a disability under VA law 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 thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Initially, the Board notes the AOJ made the following favorable findings: (1) the Veteran has been diagnosed with a left ear hearing loss disability and (2) the Veteran's military occupational specialty (MOS) of Food Services Specialist shows a probability of exposure to hazardous noise, so exposure to hazardous noise during military service is presumed. These are favorable findings that will not be readjudicated by the Board. Thus, the question before the Board is whether the Veteran's left ear hearing loss was incurred in or related to his military service, to include presumed in-service noise exposure. The Veteran's service treatment records (STRs) show the Veteran had his hearing tested in October 1974, the beginning of his active duty service, and in October 1976, at his separation from active duty service. His separation examination also notes "ear trouble." Additionally, his STRs show the Veteran had his hearing tested in March 1981 and in November 1983, during his Army Reserve service. The puretone thresholds during these examinations do not rise to the level of a hearing disability for VA purposes, however, the October 1974 examination does show some degree of hearing loss. Additionally, the examinations show threshold shifts. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. 155. In a July 2013 statement, the Veteran stated his hearing loss began while on active duty as noted on his separation physical. In August 2014, he reported being constantly exposed to loud noise from the firing range and artillery fire. The Veteran's Form DD 214 reflects he was awarded a M16A1 Sharpshooter (SS) Badge with Rifle. As to the Veteran's left ear hearing loss, Dr. M.F. stated the records reflect that the Veteran was diagnosed with ear problems during active duty. Dr. M.F. stated the Veteran has hearing problems, he has a constant sound in both ears that he suspected was tinnitus; he also confused the meaning of words. Dr. M.F. opined it was more likely than not that the Veteran's hearing problems was in direct relation to his active duty service. See June 2012 Evaluation Report. Pursuant to the Board's April 2020 remand, a Veterans Evaluation Services (VES) audiological examination was conducted in November 2020. The Veteran reported post-service occupational noise exposure including working in a factory and as a construction worker. The examiner found the Veteran's left ear hearing loss unrelated to service because the Veteran's enlistment and separation audiograms indicate hearing was within normal limits. Additionally, the examiner stated the Veteran denied hearing loss during physical examination in 1981 and 1983. The examiner noted the earliest complaint of hearing loss is dated 2007, thirty-one (31) years after separation from service. The examiner relied on a National Academies of Sciences, Engineering, Medicine Report, a report which the examiner stated, 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 concluded, the Veteran's hearing loss should be the result of nearly twenty years of occupational noise exposure, and the normal process of aging (presbycusis). The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Upon review, and resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's left ear hearing loss is related to his in-service noise exposure. 38 C.F.R. § 3.102. Although the November 2020 VES examiner found the Veteran's left ear hearing loss unrelated to service, the Board finds the opinion to be of diminished probative value. In this regard, it must be clear the examiner has considered all procurable and assembled data prior to reaching such a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Specifically, the examiner did not address the Veteran's competent and credible statements regarding in-service onset and continuity of his symptoms since service separation. Additionally, the Board notes, a negative etiological opinion based upon the lack of evidence of complaints or treatment for symptoms in a Veteran's service treatment records is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, entitlement to service connection for hearing loss does not required the criteria under 38 C.F.R. § 3.385 be met during service. Hensley, 5 Vet. App. 155. Finally, the opinion is based, in part, on the portion of the IOM study found problematic by the United States Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court explained that the qualifying or contradictory statements in the report, which are of record here, impact the probative value and adequacy of a VA medical opinion. As the medical opinion is inadequate, it cannot serve as a basis of a denial of entitlement to service connection. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his left ear hearing loss and finds that he has done so. As discussed above, the Veteran reported experiencing symptoms of hearing loss while in service. The Veteran is competent to report the onset and continuation of his hearing loss, and the Board finds his statements credible. See Layno, 6 Vet. App. 465. The Board notes lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). After a careful review of the record, the Board finds the Veteran's left ear hearing loss had its onset in service, due to hazardous noise exposure, and has continued since that time. Walker, 708 F.3d at 1338. In this regard, the Veteran has competently and credibly indicated the onset of left ear hearing loss during his military service, coincident with his duties as a Food Services Specialist, and that he has continued to experience such symptoms since service. He is competent to report symptoms of hearing loss, as they are subject to and readily observable by laypersons, and the Board has no reason to doubt his credibility. Thus, the Board resolves all doubt in the Veteran's favor and finds his left ear hearing loss is related to in-service noise exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). 2. Entitlement to service connection for right ear hearing loss is denied. The Veteran contends his right ear hearing loss is the result of exposure to acoustic trauma during active duty service. Specifically, he attributes his hearing loss to his duties as a Food Services Specialist and other noise exposure during service and asserts his hearing disability has been continuous and worsened since that time. Service connection may only be granted for a current disability. When a claimed condition is not shown, there may be no grant of service connection. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The presence of a chronic disability at any time during the claim process can justify a grant of service connection even if the disability has since resolved or where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran does not have a current right ear hearing loss disability for VA purposes. During the appeal period the Veteran was afforded a VA audiological examination in January 2016 and VES audiological examination in November 2020. The January 2016 VA examiner noted the Veteran's hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 20 Speech audiometry revealed speech recognition ability of 100 percent. The examiner stated the use of word recognition score is appropriate for the Veteran. The examiner diagnosed sensorineural hearing loss in the frequency range of 6000 Hertz or higher frequencies, but audiometric testing did not show a right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The November 2020 VES examiner noted the Veteran's hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 30 20 Speech audiometry revealed speech recognition ability of 100 percent. The examiner stated the use of word recognition score is appropriate for the Veteran. The examiner diagnosed sensorineural hearing loss in the frequency range of 500-4000 Hertz, and in the frequency range of 6000 Hertz or higher frequencies, but audiometric testing did not show a right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In support of his claim, the Veteran submitted a June 2012 Evaluation Report from Dr. M.F. Dr. M.F. stated the records reflect that the Veteran was diagnosed with ear problems during active duty. Dr. M.F. opined it was more likely than not that the Veteran's hearing problems was in direct relation to his active duty service. See June 2012 Evaluation Report. However, Dr. M.F. did not perform audiologic testing. Therefore, in the absence of right ear hearing loss for VA purposes, an opinion of this nature is not relevant to the claim on appeal. Review of the Veteran's San Juan VA Medical Center records shows he underwent an audiological examination in May 2015. The audiologist noted the Veteran's hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 20 Speech audiometry revealed speech recognition ability of 100 percent. The audiologist's diagnostic impression was essentially normal right ear hearing with mild drops above 6000 Hertz; both ears show excellent speech recognition ability and normal middle ear function. To the extent that the Veteran has reported hearing loss, such evidence is probative insofar as it describes observable symptomatology, such as hearing difficulty. See Layno, 6 Vet. App. 465. However, such reports are not probative insofar as they attempt to diagnose hearing loss according to VA regulations, to include whether it was manifested to a compensable degree during active service or within one year after discharge from service. In certain unique instances, lay testimony may be competent to establish medical diagnosis or etiology. Jandreau, 492 F.3d 1372. However, a diagnosis of a hearing disability for VA purposes is based on objective audiometric testing and is not simply determined based on mere personal observation by a layperson. 38 C.F.R. § 3.385. Thus, the question of whether the Veteran has a right ear hearing disability for VA purposes does not lie within the range of common experience or common knowledge but requires special experience or special knowledge in the field of audiology, including audiometric testing. While the Veteran competently and credibly reports impaired hearing, repeated testing in March 2015, January 2016, and November 2020, fails to show that the standards for right ear hearing loss disability are met. The Veteran has not alleged, and the evidence of record does not show, progression of impairment or worsening such that updated findings are required. Simply put, there is not current right ear hearing loss disability for VA purposes. The Board gives more probative weight to the competent audiological examinations. In the absence of competent medical evidence of a right ear hearing loss disability, the threshold requirement for substantiating a claim for service connection is not met. Brammer, 3 Vet. App. 223. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, because the preponderance of the evidence is against a finding of any current disability and the claim for service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.