Citation Nr: 21041297 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 10-36 278 DATE: July 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected epilepsy is denied. FINDING OF FACT Bilateral hearing loss was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran's current hearing loss is not related to service or caused or aggravated by his service-connected epilepsy. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1991 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran testified at a Board hearing before an Acting Veterans Law Judge who is no longer employed at the Board. The Veteran elected another hearing and, in December 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. This matter was before the Board in August 2017, at which time the Board denied the claim. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In May 2018, pursuant to a Joint Motion for Partial Remand (JMPR) by the parties, the Court vacated the portion of the decision that denied the bilateral hearing loss claim and returned it to the Board for further consideration consistent with the JMPR. This matter was last before the Board in October 2020, when it was remanded for further development. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disability, or for the degree of disability resulting from aggravation of a nonservice-connected disability. 38 C.F.R. § 3.310(a). See also Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected epilepsy is denied For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired hearing will be considered to be a disability 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. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that his hearing loss is related to his military service, or alternatively, to his service-connected epilepsy. As an initial matter, the Board notes that the Veteran's military occupational specialty (MOS) as aerospace maintenance journeyman is associated with high probability of noise exposure and noise exposure is conceded. The Board notes that the Veteran has been shown to suffer from a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 as noted on the May 2015 VA examination. Accordingly, the first criterion for establishing service connection, a current disability, has been met. The question becomes whether this condition is related to service or a service-connected disability. Upon review of the record, the Board finds that the most probative evidence is against the claim. The Veteran's service treatment records (STRs) include a May 1991 enlistment audiogram, a May 1992 reference audiogram, and a November 1994 flying class qualification audiogram, at which times auditory thresholds were recorded, all of which document normal hearing pursuant to 38 C.F.R. § 3.385. In this regard, the 1991 enlistment audiogram revealed pure tone thresholds of 10, 5, 5, 0, and 0 decibels in the right ear and pure tone thresholds in the left ear of 0, 0, 0, 10, and 5 decibels at 500, 1000, 2000, 3000, and 4000 Hertz (specified frequencies), respectively. The 1992 audiogram revealed pure tone thresholds of 10, 5, 5, 5, and 0 decibels in the right ear and pure tone thresholds of 5, 0, 5, 10, and 0 decibels in the left ear at the specified frequencies. Further, the 1994 audiogram revealed pure tone thresholds of 10, 0, 0, 0, and 0 decibels in the right ear and pure tone thresholds of 0, 0, 0, 10, and 0 decibels in the left ear at the specified frequencies. The Board notes that in January1997 the Physical Evaluation Board recommended the Veteran for discharge as he was found unfit to serve due to epilepsy; a separation audiogram is not contained in the record. Post service VA treatment records are silent for any complaints, treatment or diagnosis of hearing loss. The Veteran first underwent a VA audiology examination in connection with his claim in January 2011. At that time, pure tone thresholds at the specified frequencies were 20 decibels or less for both ears, and speech recognition scores were 100 percent bilaterally. Although the ear disease examiner opined the Veteran's hearing loss was related to service, the audiological examiner and the audiometric findings indicate that the Veteran's hearing was within normal limits bilaterally. 38 C.F.R. § 3.385. The Veteran underwent a VA audiology examination in October 2014, revealing pure tone thresholds consistent with a disability pursuant to 38 C.F.R. § 3.385. However, the examiner determined that the test results were not valid as the results were inconsistent with speech reception thresholds, acoustic reflexes, and speech discrimination ability scores. Further, the examiner stated that when compared with the 2011 VA audiology examination, the results are significantly elevated, and the Veteran's reliability was considered fair to poor. The examiner determined that the test results were considered as non-organic hearing loss and retest was required to determine the appropriate hearing threshold levels. The Veteran underwent a VA audiology examination in May 2015. The May 2015 audiogram revealed pure tone thresholds of 35, 30, 35, 40, and 40 decibels in the right ear and pure tone thresholds of 30, 35, 30, 30, and 30 decibels in the left ear at the specified frequencies. The examiner diagnosed sensorineural hearing loss bilaterally. As there is no competent evidence of bilateral hearing loss disability during service or within one year following discharge from service, competent evidence linking the May 2015 diagnosis of hearing loss with service or a service connected disability is required to establish service connection. Upon review of the record, the Board finds that the most probative evidence is against the claim. The May 2015 VA examiner opined that the Veteran's current hearing loss was less likely than not related to his service. The examiner explained that while the Veteran's military occupational specialty was associated with high probability of noise exposure, review of his service treatment records documents no shift in hearing from induction to separation. Therefore, the examiner concluded that the Veteran's current hearing loss was less likely than not related to his service. The May 2015 examiner also opined that due to the many causes of epilepsy (congenital, chemical, trauma, etc.), it is difficult to determine if hearing is affected without significant neurological evidence. The examiner further stated that the Veteran's service treatment records do not mention hearing problems with respect to his seizures and the examiner recommended the question of hearing loss secondary to seizures be directed to a neurology specialist as more examination would be needed other than audiometry alone to determine a causal link. In June 2015, the RO requested an addendum opinion from the May 2015 examiner, which was provided in December 2015. In December 2015, the examiner stated that her May 2015 opinion regarding hearing loss as directly related to military service has not changed. As to secondary service connection, the examiner stated that after literature review, no resources indicated a link between epilepsy and hearing loss. Citing to medical literature, the examiner stated that given the fact that epilepsy is a cerebral disorder rather than a peripheral disorder as is hearing loss, and given that no research was located during literature review to support a link between epilepsy and hearing loss, she opined that the Veteran's current hearing loss was less likely than not secondary to the Veteran's service-connected epilepsy. She further stated that as with the connection between hearing loss and epilepsy being unsubstantiated in literature review, there also was no research to indicate a link between epilepsy and worsening hearing loss. Therefore, the Veteran's hearing loss was less likely than not permanently worsened beyond natural progression (as opposed to temporary exacerbations) by his service-connected epilepsy. The examiner remarked that as epilepsy is a neurological disorder, any further discussion regarding the Veteran's epilepsy with respect to hearing loss should be directed for neurological or otoneurological referral. In accordance with the JMPR, the Board remanded the issue for an examiner to fully review the record and address whether the Veteran's hearing loss was a delayed response to in-service noise exposure. In March 2020 a VA examiner opined that although the Veteran was exposed to noise, the Veteran's current hearing loss does not meet the criteria to be considered a disability for VA purposes; therefore, it is less likely as not that the hearing loss is due to military noise exposure or acoustic trauma. As a May 2015 VA examination revealed bilateral hearing loss for VA purposes, the matter was remanded again to address whether bilateral hearing loss as shown on the May 2015 VA examination is related to service or a service connected disability. In November 2020, a VA examiner opined that Veteran's current hearing loss as shown on the May 2015 VA examination was less likely than not related to his service. The examiner notes a review of the Veteran's electronic claims file indicates MOS associated with high probability of noise exposure. The examiner explains that the mere presence of noise does not constitute presumption of hearing loss. The examiner indicates another review of the service medical records and states that these is no evidence of changes in hearing while the Veteran was in service. There is no complaint of hearing difficulties while in service. Furthermore, there are no records within the first year after separation which indicate hearing loss, changes in hearing or reports of difficulty with hearing. The examiner notes that hearing levels recorded while in service were within normal limits and do not meet the criteria for disability. Therefore, there is no new evidence presented to offer any opinion regarding hearing loss due to military service other than the previously stated opinion that hearing loss is less likely than not (less than 50 percent probability) caused by or a result of an event in military service. In addressing whether the Veteran bilateral hearing loss is aggravated and/or worsened by the Veteran's service-connected epilepsy, the November 2020 examiner noted that literature review regarding hearing loss secondary to epilepsy is limited as there are few articles available which discuss this relationship. Of the articles reviewed, studies were very limited to the study size, particular racial and/or ethnic groups, or were specialized information regarding epilepsy in children. The examiner opined that while there may be some very limited correlation between chromosomal mutations associated with the presence of epilepsy and hearing loss in few patients, there is not significant evidence to adequately establish nexus between epilepsy and the Veteran's hearing loss. Therefore, in order to establish an opinion without relying on conjecture, this question would require medical evaluation by a neuro-otologist or geneticist. A February 2021 VA examiner noted a review of the record to include the statement from the neurologist who specializes in epilepsy and opined that the epilepsy diagnosis has no direct relation to hearing loss or aggravation to hearing loss. The examiner noted that the Veteran's entrance examination in May 1991 showed normal hearing. The Veteran continued through service until 1997. He had examinations in May 1992 and in November 1994, both of those examination show normal hearing as well. The Veteran was diagnosed with epilepsy in 1996. There was no complaint of hearing loss at that time. He had an examination in January of 2011. At that time, 15 years after his diagnosis, his hearing was still normal. He then had testing done in September 2014. At that time, the clinician determined the loss was non-organic. He was tested in May 2015 and at that time, a mild loss was found. The examiner further noted that a March 2020 examination revealed that the Veteran's hearing had improved since 2015 and he only presented with a mild loss. The examiner noted that the February 2021 examination revealed hearing loss only at 6000 Hertz and 8000 Hertz. The examiner opined the loss is considered very mild in nature and seems more age appropriate than anything. Therefore, the epilepsy diagnosis has no direct relation to hearing loss or aggravation to hearing loss. There is no documented case of a seizure with a hearing examination right after that shows any evidence to a relation or connection. The Board finds the VA examiners' opinions combined to be competent and credible, and as such, entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The opinions were rendered after reviewing the Veteran's STRs and other medical records, soliciting a medical history from the Veteran, and conducting a physical examination and clinical testing of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The VA examiners provided facts and rationale on which they based their opinions, including expressly discussing STRs and post-service medical records. Conversely, the only favorable opinion of record regarding hearing loss was rendered when the Veteran did not suffer from a hearing loss disability and provided insufficient rationale for the conclusion reached. Accordingly, it is afforded little, if any, probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). To the extent the Veteran believes that his current bilateral hearing loss is related to service or to his service-connected epilepsy, as a lay person he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77(Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are matters not capable of lay observation and require medical testing and expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his hearing loss is not competent medical evidence. The Board finds the opinions of the VA examiners combined to be significantly more probative than the Veteran's lay assertions. In sum, the probative evidence of record is against a finding that the Veteran's bilateral hearing loss arose in service or for many years thereafter, or that it is caused or aggravate by his service connected epilepsy. Thus, service connection for bilateral hearing loss is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, 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.