Citation Nr: 21040536 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 16-52 121 DATE: July 5, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT A current bilateral hearing loss disability did not have its onset in service, has not been chronic or continuous since service separation, did not manifest to a compensable degree within a year of service, and is not due to or caused by an in-service disease, injury, or other incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1964 to August 1966. He also had a period of active duty for training from July to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2019, the Veteran testified before a Veterans Law Judge. A transcript of that hearing is of record. In a March 2021 letter, the Veteran was informed the Veterans Law Judge who presided over his 2019 hearing was no longer with the Board. He was also offered another hearing. To date, he has not responded to this letter; thus, he is presumed not to want another hearing. In a May 2019 decision, the Board denied service connection for bilateral hearing loss. In April 2020, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in May 2020 the Court granted a Joint Motion for Remand (JMR), which vacated the May 2019 Board decision and returned the matter to the Board for further consideration. In September 2020, the Board remanded this appeal to the RO for additional development. It has now been returned to the Board. Entitlement to service connection for a bilateral hearing loss disability The Veteran seeks service connection for a bilateral hearing loss disability. He asserts he was exposed to loud engines, generators, gunfire, and other acoustic trauma in service, and service connection is therefore warranted for his bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The threshold for normal hearing is from 0 to 20 decibels, and pure tone thresholds above 20 decibels may demonstrate hearing loss. McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). However, hearing loss at this level does not equate as being a "disability" for VA purposes. McKinney, 28 Vet. App. at 24-25. Specifically, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). 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. The Board notes that service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss are met, and there is a medically sound basis to attribute post service hearing loss to service, irrespective of any intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, when the testing results at separation from service do not meet the requirements for hearing loss under C.F.R. § 3.385, service connection may still be established by submitting evidence that the current disability is causally related to service. The question for the Board is whether the Veteran's hearing loss manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. Per the Court's Hensley ruling, however, the absence of hearing loss to a compensable degree either at service separation or within a year thereafter does not preclude, per se, the award of service connection if competent evidence is presented establishing a nexus between an in-service disease, injury, or other incident of service, and a current diagnosis of bilateral hearing loss. The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Considering first the service treatment records, these are negative for complaints, diagnosis, or treatment for hearing problems. In a September 1964 pre-induction report of medical history, the Veteran denied any history of ear trouble or running ears. In May 1965 and August 1966 reports of medical history, the Veteran again denied currently or ever having ear trouble or hearing loss. The Board notes that prior to January 1, 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since December 31, 1970, the International Standards Organization-American National Standards Institute (ISO-ANSI) standards generally have been used. Audiometric data originally recorded using ASA standards is converted to the ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 Add 15 10 10 10 5 To facilitate data comparison, the Board has converted the ASA standards from the Veteran's pre-1967 audiometric testing to the ISO-ANSI standards with the conversions represented by the figures on the right in each column in parentheses. At examination for service entrance in September 1964, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25(40) 15(25) 0(10) 0(10) 10(15) LEFT 15(30) 0(10) 0(10) 0(10) 0(5) On periodic examination in May 1965, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10(25) 10(20) 10(20) N/A 20(25) LEFT 10(25) 10(20) 10(20) N/A 10(15) At examination for service separation in August 1966, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 0(10) N/A 0(5) LEFT 0(15) 0(10) 0(10) N/A 0(5) Post-active duty service treatment records do not contain audiometric findings, but are negative for any diagnosis of or treatment for hearing loss or any other disabilities involving either ear. Upon receipt of the Veteran's claim, he was afforded a June 2015 VA examination. He described his military noise exposure from gunfire, diesel trucks, and weapons; he also stated he did not wear hearing protection during service. He denied any civilian occupational or recreational noise exposure; any history of ear infections, head or ear trauma, or ear surgeries; and any family history of hearing loss. Upon audiometric evaluation, a current diagnosis of bilateral hearing loss, as defined by VA, was confirmed. Following a review of the claims file and examination, the VA audiologist opined it was less likely than not that the current bilateral hearing loss was due to military noise exposure. In support of this conclusion, the examining audiologist observed that hearing examinations in September 1964 and May 1965 showed hearing within normal limits for each ear with no significantly worsening thresholds at separation audiogram. Subsequently, the Veteran established VA medical care in January 2018. During an initial primary care visit, he reported working for 35 years for an automobile company. Additional ENT and audiological consultation reports reflect evaluation for a sudden worsening of left ear hearing sensitivity with concurrent balance problems since November 2017. In April 2018, VA received a copy of a private audiological evaluation conducted in March 2018 and entered the report into the Veteran's VA treatment records. The Veteran had disclosed a "history of occupational noise exposure while working at [an automobile] factory for 30 [plus] years" and Army noise exposure as a truck driver. In April 2019, the Veteran testified that he did not recall having an entrance or separation examination, stating that while he could have had an entrance examination, "Exit, no." He described military noise exposure to diesel engines, generators, and weapons. Regarding the onset of his hearing loss, he testified, "I drove a truck right after I got out, and I really noticed it then." The Veteran's wife of 51 years testified that she had always remembered him having the TV or radio really loud. The Veteran's representative emphasized that the Veteran "did not recall an exit exam. They shipped him out to San Francisco, put him on a bus, and sent him home..., so as far as I'm concerned, I don't see where they got the threshold shift." In the May 2020 JMR, the parties agreed that the June 2015 VA examination regarding the Veteran's bilateral hearing loss was inadequate because the VA examiner failed to provide an adequate rationale. Specifically, the examiner noted facts regarding the Veteran's medical history and history of in-service noise exposure; however, the examiner failed to provide a reasoned medical explanation regarding how the cited medical evidence precluded a positive nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Pursuant to the September 2020 remand order, an additional medical opinion was obtained in October 2020, with a December 2020 addendum. A VA otolaryngologist, W.G., M.D., reviewed the claims file, to include the service treatment records, but did not personally examine the Veteran prior to providing a medical opinion. Dr. G. concluded, after review of the record, that it was less likely than not any current bilateral hearing loss disability was incurred in or otherwise related to service, to include any in-service disease, injury, or service event. In his rationale, Dr. G. noted the Veteran entered and exited the military with normal hearing as documented in audiograms. Further, according to Dr. G., the audiogram is the most objective measure of hearing loss. Dr. G. acknowledged the Veteran's reported exposure to acoustic trauma of weapons fire and large trucks. However, Dr. G. also observed that "just being around loud noise does not indicate one will develop hearing loss. The loudness and time of exposure are important in determining risk for hearing loss." In the present case, Dr. G. noted the objective in-service tests showed no hearing loss in the right ear and the Veteran subjectively denied hearing loss while in the service. After service he had noise exposure working in a factory setting for 35 years. Dr. G. explicitly considered both the Veteran's two years in service and his 35 years working in a factory setting. Objectively and subjectively, the Veteran exhibited no hearing loss noted while in the service or within a year of being in the service. Dr. G. conceded the Veteran's wife testified he has had trouble hearing as long as she can remember but Dr. G. concluded this evidence is not a reliable measure of hearing. Accordingly, Dr. G. concluded that, given all of the data and the time course of events it becomes less likely than not that the Veteran's hearing loss is related to his service and more likely it was related to his noise exposure after the service. In a December 2020 opinion addendum, Dr. G. conceded that the prior October 2020 opinion incorrectly listed the Veteran's military occupational specialty (MOS) as carpenter; the correct MOS was light vehicle driver, which has a moderate probability of hazardous noise exposure. Dr. G. further stated, however, that this change did not warrant a change in the prior rationale. Dr. G. again noted the preponderance of the evidence was against any nexus between in-service noise exposure and a current bilateral hearing loss disability. Based on this evidence, the Board must conclude that the preponderance of the evidence is against the award of service connection for a bilateral hearing loss disability on any basis. Such a disability did not have its onset in service, has not been chronic nor continuous since service separation, and did not manifest to a compensable degree within a year of service separation. Regarding the question of whether a current bilateral hearing loss disability is due to or caused by any in-service disease, injury, or other incident of service, the Board notes that both the June 2015 and October 2020 VA medical opinions concluded the preponderance of the evidence was against such an etiological nexus. While the June 2015 opinion was subsequently found to have an inadequate rationale, that flaw has been corrected by the October 2020 opinion. In finding no nexus between noise exposure in service and the Veteran's current bilateral hearing loss disability, the VA examiner, an otolaryngologist, noted not only the objective and subjective in-service findings, or lack thereof, but the Veteran's post-service noise exposure in a factory setting. The examiner explicitly noted the duration of any in-service noise exposure as compared to post-service noise exposure, and the lapse in time between service and a current diagnosis of bilateral hearing loss. The Board acknowledges the Court's holding in Hensley for the proposition that the Veteran could not be precluded from establishing service connection for his current hearing loss on the basis that measurable hearing loss was not found on separation. However, the facts in the present case are distinguished from those in Hensley in that the service treatment records are both void of any audiological findings or complaints of bilateral hearing loss, and of any threshold shifts suggesting such hearing loss. The pertinent facts in Hensley included an upward shift in hearing acuity during service, representing worse hearing between enlistment and separation examination; credible evidence of military noise exposure; and a post-service diagnosis of hearing loss. Hensley, 5 Vet. App. at 157. Based on the worsening hearing during service in Hensley, it was appropriate for rating authorities to consider whether there was a medically sound basis to attribute the post-service findings to the injury in service. The fact remains that in this case audiometric testing showed that the Veteran's hearing was normal and not demonstrating worsening throughout his service. The Board thus finds the October 2020 VA examiner appropriately relied on the totality of the record in rendering a negative nexus opinion. The Veteran and his spouse have both asserted that his current bilateral hearing loss had its onset in service, or is otherwise related to acoustic trauma sustained therein. As laypersons, however, they are not capable of making medical conclusions; thus, their statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, audiological disorders such as hearing loss are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the lay statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. (CONTINUED ON NEXT PAGE) In conclusion, the preponderance of the evidence is against the award of service connection for bilateral hearing loss on any basis. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.