Citation Nr: 21041159 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-01 065 DATE: July 8, 2021 ORDER The claim of service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence of record weighs against a conclusion that bilateral hearing loss was incurred in service; sensorineural hearing loss was not demonstrated within one year of service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1962 to December 1965. The Veteran testified at an August 2018 Board hearing before the undersigned Veterans Law Judge (VLJ). The transcript has been obtained and associated with the claims file. In October 2018, the Board denied the Veteran's appeal for service connection for bilateral hearing loss. However, in an April 2020 Memorandum Decision, the United States Court of Appeals for Veterans Claims (the Court) vacated the Board decision and remanded it for additional development consistent with their decision. The appeal was previously remanded in November 2020 and April 2021 for additional development as directed by the Memorandum Decision. The claim of service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends his bilateral hearing loss stemmed from noise exposure during military service. The Veteran's hazardous noise exposure during service has been conceded. The Veteran testified that he was an aircraft mechanic and was not provided hearing protection. His military personnel records confirm that he served as an Airmen, Basic during service. Furthermore, during the pendency of the appeal, the Veteran has been shown to experience bilateral hearing loss for VA purposes. The Veteran testified before the Board that he did not have an enlistment or separation hearing or physical examination during service (only a questionnaire at separation), and although his hearing loss started many years prior to his VA examination, it was noted in the VA examination report that it was observed in 2015. Likewise, the Veteran credibly testified that he first bought hearing aids in the early 1980s. The Veteran's service treatment records show no diagnosis, complaints of, or treatment for, hearing loss related to his service. The claims file contains audiological findings from the Veteran's enlistment examination in January 1962, and a separation hearing examination in December 1965. The Veteran's Report of Medical History at separation, the Veteran checked the box "YES" for ear, nose or throat. Details of this notation described "[ear nose and throat] trouble refers to cerumwax in ear, no [complications], no [sequalae]." The examinations revealed normal bilateral hearing upon entry and separation from service. Specifically, the December 1965 Report of Medical Examination indicated an audiogram was performed where pure tone thresholds in both ears, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -10 (0) -10 (0) -10 (-5) LEFT -10 (5) -10 (0) -10 (0) -10 (0) -10 (-5) As it is assumed that the Veteran's audiometry results were recorded in ASA units, the Board has converted this data to ISO-ANSI units by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. The conversion is reflected in the parentheses above. As such, hearing loss was not shown at separation. Following the Board's denial of the Veteran's claim in October 2018, the Veteran appealed to the Court and an April 2020 Memorandum Decision determined that the Board erred by failing to return the July 2015 VA examination report for clarification. Specifically, the July 2015 VA examiner determined that the first evidence of hearing loss arose in 2015 and therefore, hearing loss was not likely caused by or related to service. However, the record reflected at least two receipts of hearing aids from early 2000 and that the Veteran's wife, who he married 5 years after his military service, noted the Veteran's hearing loss approximately 2 years into their marriage. As such, it was found to be unclear how the July 2015 VA examiner determined that the first evidence of hearing loss did not arise until 2015. Given this discrepancy and pursuant to the Memorandum Decision, in November 2020, the Board determined a remand was necessary for additional development. A December 2020 VA etiological opinion and January 2021 addendum opinion were received pursuant to the November 2020 Board remand. However, the Board determined in April 2021 that these VA opinions were inadequate and thus, a new VA opinion was warranted. Pursuant to the April 2021 Board remand, a new VA audiological opinion was obtained in May 2021 where upon review of the evidence of record (including the Board remand, prior VA examinations, medical treatment records, and military records) as well as the Veteran and his wife's lay statements, the VA examiner opined it was less likely than not (less than 50 percent probability) that the Veteran's hearing loss was incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner acknowledged that based on the lay statements of the Veteran and the Veteran's wife, the Veteran's hearing loss began approximately 7 years after his military service. The Veteran reported purchasing hearing aids in the early 1980s, which was approximately 15 years after separation, and his hearing aid use around 2000. Despite the Veteran's reports of military noise exposure, the VA examiner noted that the hearing examinations during service revealed normal hearing in both ears with no significant hearing changes. The VA examiner also cited to the Noise and Military Service: Implications for Hearing Loss and Tinnitus, Executive Summary 2006, where it stated "[t]here 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." The VA examiner stated that "[t]his report was a summary of many years of relevant research related to tinnitus, hearing loss, and noise exposure." Based on this report, the VA examiner concluded: [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 is consistent with changes due to aging or other factors outside of military service. Noise exposure is 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, it is less likely than not [the Veteran's] hearing loss was a result of military noise exposure. After weighing all the evidence, the Board finds that the entirety of the evidence weighs against the conclusion that the Veteran's bilateral hearing loss either began during or was otherwise caused by his active service, including as a result of military noise exposure. Here, the record does not contain evidence of bilateral hearing loss during the Veteran's military service nor of any diagnosis or reports of such within one year of separation from the service. Thus, the evidence fails to establish service connection for the Veteran's bilateral hearing loss. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). However, considering the Veteran and his wife's lay statements the Veteran first reported hearing loss approximately 7 years following service, the earliest indication of the presence of bilateral hearing loss. Therefore, the Veteran is not shown to have had bilateral sensorineural hearing loss within one year of separation from active duty in December 1965. 38 C.F.R. §§ 3.307, 3.309. Overall, there is no competent medical opinion in support of the claim. The May 2021 VA opinion, which weighs against the Veteran's claim, is the most probative evidence of record on the question of nexus to service. This opinion was based on an extensive review of all of the evidence, including lay statements from the Veteran and his wife, the service treatment records, the Veteran's post-service treatment records, and the Veteran's in-service military occupation, were supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The May 2021 VA examiner's opinion provided compelling evidence against the Veteran's claim for service connection to include referencing a medical study in support of the conclusion. Moreover, this opinion did not rely exclusively on the fact that the Veteran's hearing was within normal limits at his separation from service. See Hensley v. Brown, 5 Vet. App. 155 (1993). The only evidence of record in support of the Veteran claim consists of his own lay statements. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Veteran is not competent (meaning medically trained) to opine on the etiology of his hearing loss. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the etiology of the current hearing loss is a complex medical question that is not within the competence of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). (Continued on the next page) Accordingly, the criteria for service connection have not been met and the Veteran's claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.