Citation Nr: 21040729 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 14-27 631 DATE: July 6, 2021 ORDER Service connection for bilateral hearing loss is denied. VETERAN'S CONTENTIONS The Veteran contends that he has bilateral hearing loss as a result of acoustic trauma related to his military occupational specialty (MOS) as a field artillery crewman. Specifically, he contends that he was exposed to artillery fire and self-propelled howitzer noise. FINDINGS OF FACT 1. The Veteran was exposed to excessive levels of noise during service. 2. Bilateral hearing loss was not shown in service or for many years thereafter and is not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1964 to April 1966. The Veteran passed away in March 2019. The appellant is the Veteran's surviving spouse and VA has recognized her as the substituted party in the instant case. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) in November 2017. A transcript of the hearing has been associated with the claims file. In February 2018, the Board sent a letter to the Veteran advising him of his right to testify at a Board hearing before another Veterans Law Judge, as the judge before whom he had previously testified was no longer employed by the Board. In a February 2018 response, the Veteran indicated that he did not wish to appear at another hearing, and that he wished for the Board to consider his case on the evidence of record. Therefore, the Board considers him to have waived his right to an additional hearing. 38 C.F.R. § 20.717. This matter was previously before the Board at which times it was remanded for further development. Entitlement to service connection for bilateral hearing loss 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. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) 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 current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). "Other organic diseases of the nervous system," which may include sensorineural hearing loss, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38. The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Notably however, "section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 159 (1993). "When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Id. at 160. Here, the record reflects that the Veteran has been diagnosed with bilateral hearing loss that meets VA criteria for consideration as a disability. See February 2013 VA Hearing Loss and Tinnitus Examination Report; 38 C.F.R. § 3.385. As such, the first element of service connection, a current disability, is satisfied. Turning next to service incurrence, the Board finds that the Veteran was exposed to excessive levels of noise in service, based on his consistent statements regarding in-service noise exposure related to his military occupational specialty (MOS) as field artillery crewman, including artillery fire noise exposure/self-propelled howitzer noise exposure. In this regard, the Board notes that the Veteran's military personnel records, including his DD-214, confirm his MOS of field artillery crewman which has a high probability of noise exposure. Additionally, the RO has conceded noise exposure. See April 2021 Supplemental Statement of the Case. In addressing nexus, the evidence of record includes a February 2013 VA Hearing Loss and Tinnitus examination report in which the examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or a result of military noise exposure. The examiner reasoned that based on a review of the c-file, including service medical records, and the fact that no hearing loss was present at enlistment or separation, hearing loss was deemed less likely than not (less than 50/50 probability) to have been caused by or a result of military noise exposure. The examiner noted that the Veteran reported that his MOS was artillery and he was exposed to rifle range, gunfire, and diesel engine noise without hearing protection. However, the examiner also noted that the Veteran reported occupational noise exposure including tractors and tow motors (both without hearing) and recreational noise exposure including hunting and target shooting without hearing protection. In March 2018 the Board remanded the Veteran's claim for an addendum opinion addressing a delayed onset theory of causation. In a September 2020 addendum an examiner again opined that the Veteran's bilateral hearing loss was less likely than not related to service, to include as a result of noise exposure in service, and that it was not likely to have manifested within the first year after his separation from service. The examiner reasoned that there were no significant threshold shifts in either ear when comparing the entrance and separation audiological examinations. The examiner explained that when hearing loss manifests within the first year after service, a shift in hearing would be noticed at one or more frequencies in the audiological examinations conducted during service. In this case, the Veteran's hearing was excellent at entrance and at the separation examination, and there were no significant threshold shifts. Therefore, the Veteran's current hearing loss was less likely to have manifested within the first year after separation. The examiner further explained that the audiogram is the objective standard for noise injury, and because the Veteran's hearing was normal at separation with no significant threshold shifts having occurred during active duty service, there was no evidence suggesting that the Veteran's military noise exposure caused a permanent noise injury affecting hearing sensitivity. Therefore, the examiner determined that the Veteran's current hearing loss was less likely than not caused by or a result of military noise exposure. Regarding delayed onset hearing loss, the examiner acknowledged the 2009 Kujawa study which indicated that when mice were exposed to loud levels of noise, even though hearing thresholds recovered to normal following the cessation of that noise, there was a delayed onset of underlying neural degeneration. With respect to the delayed onset of neural degeneration following noise exposure, the examiner noted that the mice did not show any evidence of delayed-onset threshold shifts in hearing sensitivity. Further, the examiner emphasized that the Kujawa study was performed using mice as subjects, and at present there was no scientific evidence in human subjects which validated the theory of delayed-onset hearing loss due to noise exposure. The examiner explained that the generalization of animal studies to humans is tenuous at best. Based on our current knowledge of human cochlear physiology, there was not a sufficient scientific basis for the existence of delayed-onset hearing loss in humans. The Institute of Medicine (IOM) (2006) "Noise and Military Service: Implications for Hearing Loss and Tinnitus" states: "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." In December 2020, the Board again remanded the Veteran's claim for an addendum opinion addressing the Veteran's specific noise exposure history including his report of a lack of occupational noise exposure after service and the competent lay statements of record. In an April 2021 addendum, an examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged that the Veteran was exposed to high amounts of hazardous noise in his MOS of field artillery crewman, noise exposure in service was conceded, the Veteran's family reported hearing difficulty for many years, and the Veteran reported that his hearing loss began in service, Nonetheless, the examiner determined that the Veteran's military medical records did not support his claim. The Veteran's military hearing examinations showed normal hearing and no significant hearing changes from enlistment to separation. The examiner observed that a 2009 Kujawa study referenced at the Veteran's Board hearing indicated that when mice were exposed to loud levels of noise, even though hearing thresholds recovered to normal following the cessation of that noise, there was a delayed onset of underlying neural degeneration, however, the mice did not show any evidence of delayed-onset threshold shifts in hearing sensitivity. The examiner reasoned that the generalization of animal studies to humans is tenuous at best and it is the VA's stance that according to the Noise and Military Service: Implications for Hearing Loss and Tinnitus, Executive Summary 2006, "There is not sufficient evidence to determine whether permanent noise-induced hearing loss or tinnitus can develop later in one's lifetime, long after the cessation of noise exposure and that based on available data, it is unlikely that such delayed effects occur." This report is a summary of many years of relevant research related to tinnitus, hearing loss, and noise exposure. In sum, the examiner considered it highly significant that the Veteran had normal hearing at enlistment and separation and after separation. Hearing loss and tinnitus were reported and found years after service ended which was consistent with change due to aging or other factors outside of military service. Noise exposure was conceded during service; however, due to no significant hearing changes found in service, and the Executive Summary conclusion that it is unlikely delayed onset of hearing loss can occur, the examiner determined that it was less likely than not that the Veteran's hearing loss was a result of military noise exposure. The Board finds the February 2013, September 2020, and April 2021 VA opinions to be highly probative. The opinions were based on a review of the claims file, relevant facts, and peer reviewed medical literature, and the examiners provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent opinion to the contrary. 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. 31 Vet. App. 243, 249, 257 (2019). Here, the September 2020 and April 2021 VA examiners relied, in part, on the IOM report. However, the examiners also considered other recent studies on rodents that speculate on delayed onset of hearing loss. Additionally, the examiners acknowledged the specific deficiencies of the IOM report, particularly with regard to the lack of definitive studies on the delayed onset of hearing loss, but then relied on the anatomical and physical data contained within the IOM report. Moreover, the cited medical text evidence was accompanied by a medical opinion from a medical doctor, who has expertise in the field of audiology, and is familiar with the relevant facts of this Veteran case. In this regard, the opinion shows that the VA audiologist considered the Veteran's MOS of field artillery crewman, the Veteran's reports of in-service exposure to loud noises, and his STRs, to include the enlistment and separation examinations. In light of these, factors the Board places considerable weight on this probative evidence that goes to nexus. The Board also acknowledges the Veteran's complaints related to his bilateral hearing loss and recognizes that the Veteran is competent to describe symptoms he experienced based on his personal knowledge. Layno, 6 Vet. App. at 470. However, the issue of whether the Veteran has current bilateral hearing loss sustained in service for which service connection may be granted is a complex medical issue which the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss was not shown in service or for many years thereafter and is not related to service. Therefore, service connection for bilateral hearing loss is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.