Citation Nr: 21040927 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-58 321 DATE: July 7, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a bilateral hearing loss disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1965 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in June 2019; a transcript is of record. In an October 2019 decision, the Board denied service connection for hearing loss and tinnitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Remand (JMR), and vacated and remanded the appeal. In March 2021, the Board remanded the appeal for further development. In an April 2021 rating decision, the RO granted service connection for tinnitus. As such, that claim is no longer on appeal before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for a bilateral hearing loss disability is denied. 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, 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). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. For VA compensation purposes, impaired hearing will be considered 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 Veteran seeks service connection for a bilateral hearing loss disability. He asserts his current disability is due to noise exposure while conducting his duty as a jet mechanic and a crew member of transport aircrafts. See Board hearing transcript ; see also June 2019 Correspondence. A May 2015 VA examination report indicates a current bilateral hearing loss disability for VA purposes exists. 38 C.F.R. § 3.385. Thus, the questions for the Board are whether the Veteran's current disability began during service and/or is at least as likely as not related to an in-service injury, event, or disease. The Veteran's DD Form 214 indicates that his military occupational specialty (MOS) was aircraft mechanic. The Veteran testified, at the hearing before the undersigned, that he was a jet mechanic and repaired aircraft engines in the Navy. Based on the Veteran's MOS and statement, the Board finds in-service noise exposure is consistent with the place, type, and circumstances of his service. See 38 U.S.C. § 1154 (a). Therefore, the remaining question is whether the Veteran's current hearing loss disability is related to such in-service noise exposure. The Board concludes that, while the Veteran has a current bilateral hearing loss disability and noise exposure in service, the preponderance of the evidence weighs against finding that his bilateral hearing loss disability began during service or is otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records are absent of any complaints, diagnosis, or treatment for hearing loss. At the September 1965, January 1967, and August 1969 examinations, clinicians noted normal clinical evaluations of the Veteran's ears. Because it is unclear whether thresholds at the September 1965, January 1967, and August 1969 evaluations were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 On the authorized audiological evaluation in September 1965, pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Right 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) Left 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) On the authorized audiological evaluation in January 1967, pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Right 20 (35) 20 (30) 10 (20) 10 (20) 10 (15) Left 20 (35) 10 (20) 5 (15) 10 (20) 20 (25) The Veteran denied any ear trouble on the accompanying Report of Medical History. On the authorized discharge audiological evaluation in August 1969, for discharge ISO pure tone thresholds, in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Right 0 5 5 10 0 Left 5 5 5 10 0 In connection with the current claim for service connection, the Veteran underwent a VA audio examination in May 2015. In the October 2020 JMR, the parties stipulated that opinion was inadequate because the opinion included citation to, and reliance on, the Institute of Medicine's (IOM) report entitled "Noise and Military Service: Implications for Hearing Loss and Tinnitus" (IOM Report). The Board will not rely on this medical opinion in adjudicating the appeal. At the June 2019 Board hearing, the Veteran reported that he was exposed to noise from aircrafts without ear protection for approximately 1,800 air hours. The Veteran reported that he recalls several times after a long flight, especially on a C-130 jet engine aircraft, where he had to ask his fellow shipmates to speak louder probably due to residual noise in his ears or temporary hearing loss. Pursuant to the March 2021 Board remand, an addendum medical opinion was received in April 2021. The VA contract examiner opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The contract examiner provided the following rationale: The 3/22/21 remand letter, transcript of hearing, lay statements, medical journal articles, military records, and previous C&P exam were reviewed. Records show normal hearing with no significant hearing changed from 1965 enlistment exam to 1969 separation exam. There was a significant hearing shift in both ears in 1967[;] however it was not consistent with a noise induced hearing change. The decrease in hearing occurred at all frequencies which is consistent with a middle ear condition or poor/fair subjective responses from the veteran. A noise induced hearing change would affect the high frequencies. Even with converting the audiogram standards to ISO-ANSI there were no significant hearing changes on his separation exam as compared to his enlistment exam. During his interview with the appeal judge the veteran reported temporary hearing changes and tinnitus after noise exposures on C-130s. He also reported noticing hearing loss first about 30 years after his military separation. He worked for 30 years in construction and truck driving with some use of hearing protection. There is some medical data to support an increase in age related hearing loss with early noise exposures in some cases however this is not above a 50% probability. He had hazardous noise exposure in service for approximately four years and then had 30 years of hazardous noise exposure in occupational settings after his service ended. His hearing did not significantly change during his military service. The evidence supports his age and the many years of occupational noise exposure after service as the most likely cause of his hearing loss. His hearing loss is less likely than not due to his military service. In May 2021, the Veteran submitted information about the USS Coral Sea, CVA-43, with a handwritten annotation that he was exposed to "extreme" noise levels from aircraft launches and recovery and that he was not given the earplugs and earmuffs aboard the vessel that were referenced in the information about the USS Coral Sea, CVA-43. He also submitted a copy of the 2006 IOM study. After review of the evidentiary record, service connection for hearing loss is not warranted. At the outset, the Board notes that the Veteran has not submitted a medical nexus opinion in support of his appeal of service connection for hearing loss. To the extent that the Veteran's has offered lay statements in an attempt to establish causal nexus, the probative value of his lay assertions is outweighed by the April 2021 VA opinion. Determining the presence of a hearing loss disability per 38C.F.R. §3.385 and the etiology of such is medically complex, as it requires knowledge of audiology and interpreting audiology tests. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board places little weight on his statements and gives more probative weight to the April 2021 VA medical opinion by a licensed audiologist with the clinical expertise and training to render medical opinions on the etiology of audiological conditions. The Board finds that the VA examiner provided an adequate opinion supported by cogent rationale. The examiner addressed the Veteran's lay assertion that his hearing loss began more than 30 years after separation from service. The Veteran has not offered any other competent and probative medical evidence which otherwise establishes a causal relationship between his current bilateral hearing loss and noise exposure in service. The Board has reviewed the April 2021 audiogram report from the Hearing Rehab Center and the July 2018 report from Affordable Hearing Center, both of which were received in May 2021. Neither audiogram report contains a medical nexus opinion. The Board acknowledges that the Veteran submitted a copy of the IOM in May 2021, which his attorney before the Court previously asserted contained qualifications or contradictions, as reflected by the JMR and the appellate brief received in October 2020. However, the Board rejects this treatise evidence because it contains generic information that is too general to be applied in any determinative manner in this particular case and does not establish "a plausible causality in this case based on objective facts. See Mattern v. West, 12 Vet. App. 222, 228 (1999); Sacks v. West, 11 Vet. App. 314, 317 1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996)(medical treatise evidence must demonstrate connection between service incurrence and present injury or condition). The treatise evidence does not address the specific facts of the Veteran's claim before the Board. Further, it arguably contains qualifications or contradictions which the Veteran, through his representative, has not addressed. The Board previously acknowledged the June 2019 reference to treatise evidence (i.e., "Dr. Sharon Kujawa and Dr. Charles Leberman both with the Department of Otology and Laryngology Harvard Medical School and Eaton-Peabody Laboratory & Department of Audiology, Massachusetts Eye and Ear Infirmary, in the Journal of Neuroscience dated November 11, 2019, present that overexposure to intense sound can cause temporary or permanent hearing loss). Neither the Veteran nor his representative have provided the full referenced report, or even the full citation, for the Board's review. To the extent that this treatise evidence in fact indicates what it is purported, such evidence provides only general information rather than a causal relationship with a degree of certainty such that, under the facts of this specific case, there is at least plausible causality between the Veteran's acoustic trauma in service and the later development of the hearing loss. The treatise evidence does not address the specific facts of the Veteran's claim before the Board nor is it accompanied by the opinion of any medical expert discussing the specific facts of the Veteran's case. It is therefore insufficient to establish the required medical nexus between the Veteran's hearing loss and service. To the extent that the Veteran, through his representative, in the June 2021 Written Brief Presentation (Brief), argues the April 2021 VA opinion is inadequate, the Board finds this argument to be without merit. In the June 2021 Brief, the Veteran's representative argues that the opinion is inadequate because it "fails to address the IOM report and any qualifications or contradictions in it." The Board notes that McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) requires the Board to address whether the IOM contains apparent qualifiers or contradictions and if so, whether those aspects of the report affected the medical opinion's probative value in cases where the VA examiner relies on the report in reaching a nexus and the Board then relies upon such opinion when adjudicating an appeal. The Board April 2021 VA examiner did not rely on the IOM in reaching the nexus opinion, and neither does the Board; hence, no discussion of whether the IOM contains apparent qualifiers or contradictions is necessary in the instant decision. To the extent it is argued the VA opinion is flawed because it did not discussion the IOM study, it is worth noting here that basis of the October 2020 JMR was that the May 2015 VA opinion was inadequate because the IOM was cited by the examiner (and the Board subsequently failed to address the medical text evidence as relied on by the medical examiner in its decision). This circular argument presented by the Veteran's representative is internally inconsistent and meritless. The Veteran, through his representative, also argues that the VA examiner utilized the wrong evidentiary standard in providing the nexus opinion. In pertinent part, the opinion states "[t]here is some medical data to support an increase in age related hearing loss with early noise exposures in some cases; however this is not above a 50% probability." The Board acknowledges that the standard of proof is 'at least as likely as not' in establishing causal nexus. However, it is evident to the Board upon reviewing the opinion and rationale in its entirety, that the examiner's discussion of the 'above a 50 probability' was limited to whether the narrow question of whether age-related hearing loss is increased in cases where there is early noise exposure. This was not proffered as the evidentiary standard for the nexus opinion overall. The examination report provided two options to the examiner- 'whether the claimed condition was at least as likely as not (50 percent or greater probability' incurred in or caused by the claimed in-service injury, event or illness;' or 'whether the claimed condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness.' The examiner checked the box for the latter option, and also stated in the rationale that the hearing loss is less likely than not due to service. The proper evidentiary standard was utilized by the examiner in proffering the nexus opinion. Next, it is asserted that the VA examiner failed to provide a full rationale for finding that "[t]he evidence supports his age and the many years of occupational noise exposure after service as the most likely cause of his hearing loss." This argument is flawed. The fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," does not render the opinion inadequate. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Moreover, the rationale provided adequately addresses the conclusion reached. Indeed, the examiner explained that the Veteran's 30 years of post-service hazardous occupational noise exposure, as compared to only four years of military service noise exposure with a lack of any significant hearing change during military service led him to conclude that the current hearing loss was not of military service origin. Next, the Veteran, through his representative, asserted there is no clear indication that the examiner considered the treatise evidence as instructed by the remand. The Board points out that the previous remand only requested the examiner to 'consider' the treatise evidence referenced in the June 2019 correspondence and in the October 2020 Appellate Brief and contrary to the argument raised in the June 2021 Brief, the VA examiner specifically indicated in the April 2012 examination report that the medical journal articles referenced were reviewed. Finally, it was argued that the VA examiner stated that noise-induced hearing loss would have a disproportionate effect at higher frequencies and the Veteran has provided a recent hearing examination that shows a "dramatic threshold shift at higher frequencies." The Veteran's reliance on this excerpt from the VA opinion is misplaced. Medical reports must be read as a whole and in the context of the evidence of record. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Review of the April 2021 VA opinion in context shows that the discussion of whether noise-induced hearing change would affect the high frequencies was in the context of the review of the service treatment records and what was contemporaneously shown during service: There was a significant hearing shift in both ears in 1967[;] however it was not consistent with a noise induced hearing change. The decrease in hearing occurred at all frequencies which is consistent with a middle ear condition or poor/fair subjective responses from the veteran. A noise induced hearing change would affect the high frequencies. Even with converting the audiogram standards to ISO-ANSI there were no significant hearing changes on his separation exam as compared to his enlistment exam. The examiner indicated that the hearing shift in both ears, in 1967, was not consistent with a noise-induced hearing change and that the Veteran's hearing did not significantly change during his military service. For this reason, the Board finds the argument that the opinion is not adequate, on this particular basis, to be without merit. The Board also has considered whether a nexus may be established based on chronic disease and continuous symptomatology framework. However, his service treatment records do not show complaints of, or treatment for, ringing in the ears. There also is no record of diagnosis of tinnitus within one year of service. Further, the Veteran reported at the June 2019 Board hearing that he first noticed tinnitus around the same time as bilateral hearing loss, which was approximately 30 years after separation from service. The Board thus concludes that, while the Veteran has tinnitus, which is a chronic disease under 38C.F.R. §3.309 (a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with credible evidence of continuity of symptomatology. While the Veteran has sensorineural hearing loss, which is a chronic disease under 38C.F.R. §3.309 (a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with credible evidence of continuity of symptomatology. The Veteran is competent to report on his hearing difficulties following service. However, the Veteran reported at the Board hearing that he first noticed hearing loss approximately 30 years after discharge. There is no other competent medical evidence of record that supports a finding that any bilateral hearing loss experienced by the Veteran within a year of service manifested to a compensable degree as required by 38C.F.R. §3.307 (a)(3). Therefore, bilateral hearing loss disability is not presumed to have been incurred in service. Accordingly, the preponderance of the evidence is against finding that the Veteran's bilateral hearing loss was incurred in service, manifested to a compensable level within a year of service, or is otherwise attributable to his service. The Board has considered the applicability of the benefit of the doubt doctrine; however, it is not applicable. Service connection for a bilateral hearing loss disability is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.