Citation Nr: 21041365 Decision Date: 07/09/21 Archive Date: 07/08/21 DOCKET NO. 17-05 144 DATE: July 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is not shown to have had its onset during service or manifested to a compensable degree within one year following the date of the Veteran's separation from service, and bilateral hearing loss disability is not shown to be related to an injury, disease, or event in service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from December 1965 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the Veteran's claim of entitlement to service connection for hearing loss for development including a new VA examination. In February 2021, the Board remanded the claim once again for another new VA examination. The case has now returned to the Board for further appellate review, and been reassigned to the undersigned Veterans Law Judge (VLJ) for the first time. The Board notes that the February 2021 Board decision additionally resolved the issues of entitlement to service connection for lung cancer and entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability with final decisions. Those issues are no longer in appellate status and are not before the Board at this time. The prior January 2019 Board decision resolved the issue of entitlement to service connection for tinnitus by granting that claim, and furthermore granted the Veteran's petition to reopen the claim of entitlement to service connection for bilateral hearing loss. Those particular issues are also no longer in appellate status and are not before the Board at this time. 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks to establish entitlement to service-connected compensation for his bilateral hearing loss, contending that his bilateral hearing loss is the result of acoustic trauma experienced during his active duty military service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases (including sensorineural hearing loss, as an organic disease of the nervous system) will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (1 year for organic diseases of the nervous system); or, if continuity of the symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence of record in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence of record for this appeal, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Impaired hearing will be considered to be a disability for service connection purposes 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. See 38 C.F.R. § 3.385. The evidence shows that the Veteran has a current qualifying diagnosis of bilateral sensorineural hearing loss for VA compensation purposes. This is confirmed in the April 2021 VA examination report, including with audiometric data meeting the criteria discussed above. The Board finds that the preponderance of the evidence shows that the Veteran's hearing loss was not manifest during or within one year of service, and the preponderance of the evidence is against a finding that there was continuity of hearing loss symptomatology following service. The Board furthermore finds that the preponderance of the evidence is against a finding that there is otherwise an etiological link between the Veteran's current hearing loss and his military service. As discussed in the Board's prior remands, the Veteran's hearing tests during service were both prior to November 1967. Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In this case, based on the date of the Veteran's service entrance and exit examinations, there is an assumption that the testing standard featured ASA units. The results have been converted to ISO-ANSI standards in this decision to facilitate data comparison. The December 1965 audio examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 For ISO add (+15) (+10) (+10) (+10) (+5) RIGHT 5 (20) 5 (15) 0 (10) 0 (10) 5 (10) LEFT 5 (20) 5 (15) 0 (10) 5 (15) 5 (10) (CONTINUED ON NEXT PAGE) The August 1967 audio examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 For ISO add (+15) (+10) (+10) (+10) (+5) RIGHT 5 (20) 5 (15) 10 (20) 5 (15) 5 (10) LEFT 5 (20) 10 (20) 5 (15) 0 (10) 5 (10) The Board notes that the Veteran has asserted, including in an April 1994 written statement, that "my separation exam was sometime in September of 67 even then all the doctor did was just look into my ears." However, the Board finds that the detailed August 1967 audiometric examination is clearly documented as part of the Veteran's service separation examination. Although the Veteran may not recall the occurrence of this examination after the passage of subsequent decades, the Board finds that this clearly documented service examination data is probative evidence in this case. An August 1993 VA medical report shows that the Veteran underwent an audiological evaluation at that time revealing "Bilateral normal hearing through 8KHz," complete with data consistent with that finding (hearing thresholds not meeting the criteria to be considered disabling under C.F.R. § 3.385). Audiometric thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 XX 20 LEFT 10 10 10 XX 15 Speech recognition scores using an unspecified test were 100 percent in the right ear and 100 percent in the left ear. Thus, through the time of this examination in August 1993, the evidence indicates that the Veteran's hearing was normal in terms of audiologist assessment, with the accompanying data compatible with such a finding. Later, an October 1993 VA audiology examination report shows "hearing within normal limits in the left ear and a mild high frequency sensorineural hearing loss in the right ear." However, the accompanying audiometric data once again does not meet the criteria to be considered disabling under C.F.R. § 3.385. Audiometric thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 30 30 LEFT 10 10 20 15 20 Speech recognition scores using the Maryland CNC Test were 100 percent in the right ear and 96 percent in the left ear. Thus, through the time of this examination in October 1993, the evidence indicates that the Veteran had not developed a hearing loss disability meeting VA's definition by all pertinent objective measures. Also notably, the October 1993 VA audiology examination report shows that the Veteran himself asserted at that time only that he experienced "hearing loss in his right ear," and not his left ear. Furthermore, the Veteran reported that his right ear hearing loss "began approximately ten to fifteen years ago." This description which would put onset of hearing loss in the 1978 to 1983 timeframe, or at a minimum, over a decade after service. The Veteran later asserted, in a June 1994 written statement, that he only meant to indicate that the hearing loss first "became notic[e]able 10-15 years" prior to the October 1993 VA examination. In any event, the evidence clearly reflects that the Veteran did not experience any perceivable hearing loss until approximately 1978 at the earliest, and that his hearing loss did not meet VA's objective standards to be considered a disability even by the time of the October 1993 VA examination. Thus, the Veteran's own assertions indicate that he did not perceive any hearing loss until more than 10 years following his separation from service, and objective measurement of his hearing acuity continued to show an absence of hearing loss disability by VA standards as long as 26 years after his separation from service. These lengthy periods following the Veteran's separation from active duty service without evidence of any emergence of perceivable hearing loss or hearing loss disability is one factor that weighs against the Veteran's claim for service connection on a direct basis. See Maxson v. West, 12 Vet. App. 453, 459 (1999). The Board notes that, while the Veteran's above-discussed 1993 and 1994 statements clearly indicated that he did not experience noticeable hearing loss until many years after service (10 years after service for the right ear, and even longer in the left ear as he had not yet developed hearing loss complaints in the left ear by 1994), the Veteran has since made contrary statements. Including in written statements submitted in November 2016 (two in this month) and in June 2020, the Veteran stated that his hearing loss was "evident upon discharge from service, and I was not aware that I could get help from the Veterans Administration," that "I have had hearing loss ... since I was in the Army," and the June 2020 statement reiterates his assertion that he was prevented from receiving treatment for hearing loss due to prohibitive costs in 1978, his unawareness of potential eligibility for VA treatment for some time thereafter, and an unpleasant encounter at VA in 1986. Based on these inconsistencies, the Board finds that the Veteran's statements with respect to onset of hearing loss in or near in time to discharge from service and continuity of hearing loss symptomatology to lack credibility. The Veteran's statements from 1993 and 1994 are more proximate to the Veteran's military service and clearly indicate that he did not experience a continuity of symptomatology following service nor any onset of hearing loss symptomatology during service or within 10 or more years following separation from service. Furthermore, the 1993 and 1994 statements are consistent with the Veteran's contemporaneous service treatment records showing no complaints of hearing loss during service and documenting objectively measured normal hearing acuity at separation. The Board finds that the contemporaneous service treatment records together with the Veteran's own statements made in 1993 and 1994 are more probative regarding his history of hearing symptomatology than are the contrary statements the Veteran subsequently made that are more remote and removed from the pertinent in-service and post-service periods in question. The Board finds that the more probative evidence is the evidence showing no continuity of hearing loss symptomatology from the time of separation and no onset of hearing loss symptomatology during service or for many years following separation from service. A November 2000 VA audiology treatment report shows "Test results indicate hearing acuity WNL [within normal limits] bilaterally from 250-4000 Hz.... Functional hearing is excellent." A November 2005 VA treatment report shows that the Veteran denied deafness at that time. A November 2015 VA audiology treatment record shows that the Veteran "reports subjective hearing loss in each ear that has gradually increased." The entry shows that the Veteran "reports military noise exposure, but denies occupational and recreational noise exposure." The Veteran was provided a VA audiology examination in connection with the claim on appeal in August 2016. The August 2016 VA examination report documents a diagnosis of sensorineural hearing loss in both ears, and the presented audiometric data confirms hearing loss that is consistent with the VA criteria of C.F.R. § 3.385. The August 2016 VA medical opinion finds that there is not a 50 percent or greater probability of an etiological link between the Veteran's current hearing loss and his military service. However, as explained in the Board's January 2019 remand, the medical opinion presented in the August 2016 VA examination report is not fully adequate to inform appellate review. A December 2018 VA audiology treatment report includes a subjective history section based upon interview of the Veteran and shows that the Veteran reported "Noise Exposure: Military: Helicopter mechanic 22 months. Occupational: Coalmines. truck driver. press machine, cleaning fo[]r National forest division." The Veteran was provided with another VA audiology examination in connection with the claim on appeal in January 2020. The January 2020 VA medical opinion finds that there is not a 50 percent or greater probability of an etiological link between the Veteran's current hearing loss and his military service. However, as explained in the Board's February 2021 remand, the medical opinion presented in the January 2020 VA examination report is not fully adequate to inform appellate review. The Veteran has most recently been provided with a VA audiology examination in connection with the claim on appeal in April 2021. The April 2021 VA examiner opined that there was not a 50 percent probability or greater that the Veteran's hearing loss is caused by or a result of an event in military service. The VA examiner's opinion addressed points of concern expressed in the prior Board remands in this case. The April 2021 VA medical opinion restated the requested opinion, including acknowledging the "threshold shifts ... after the veteran[']s hearing results are properly converted to ISO-ANSI standards." The VA examiner reviewed the record and determined that the Veteran "had no significant shifts in hearing while in service" and he "did not have significant changes in hearing while in the service." The examining VA audiologist is competent to make this assessment. The April 2021 VA examiner also acknowledged, in restating the requested opinion, "the veteran[']s reported in-service noise exposure as discussed in the August 2016 VA audiological examination." The VA examiner reviewed the record and found that "Even th[]ough the veteran had noise exposure while in the service he did not have significant changes in hearing while in the service." The VA examiner discussed that the Veteran "worked aircraft while in the service," and discussed that the Veteran "indicated on a separation medical report that he had no ear problems." Additionally, the VA examiner cited finding that the Veteran "did not have hearing loss when he separated from the service." The examining VA audiologist is competent to make this assessment. Further, the April 2021 VA examiner acknowledged, in restating the requested opinion, "the veteran[']s denial of post service noise exposure." The VA examiner cited that the Veteran "worked in hazardous noise environments as a coal miner, truck driver, and farmed after service," cited that the Veteran "had normal hearing at the time of discharge from the Army," and concluded that "[a]ny hearing loss was after the veteran left the service." The prior August 2016 VA examination report noted the Veteran's report of post-service employment including "a couple of factories," "in coal mines for 2 years," "farmed for 8 years," "worked as a truck driver for 8 year[]s and farmed until retiring in 2011." Whereas the August 2016 VA examination report listed this information and then later cited a "history of occupational loud noise exposure" in the rationale for the presented medical opinion, the April 2021 VA examination report more clearly specifies that the audiologist considered the Veteran's reported post-service work as "coal miner," "truck driver," and "farme[r]" to be "hazardous noise environments." The Veteran does not dispute that he has worked in the cited environments; rather, the Veteran has merely been reported to have said during a November 2015 VA treatment consultation something recorded as: "He reports military noise exposure, but denies occupational and recreational noise exposure." Notably, the Veteran's VA treatment records subsequently indicate that the Veteran has reported a history of occupational noise exposure including in the December 2018 VA evaluation's documentation of the Veteran's subjective history showing that he identified pertinent occupational noise exposure during work in coal mines, truck driving, and other aspects of his occupational history. The Board finds that the April 2021 VA audiologist is competent to characterize coal mining, truck driving, and farming as associated with "hazardous noise environments." If the notation in a November 2015 VA treatment report that the Veteran "denies occupational and recreational noise exposure" corresponds to an accounting from the Veteran intended to indicate that he believed the noise exposures he experienced following service were not of comparable loudness / severity to the "military noise exposure" he recalls, the Board finds this to be a potentially credible statement that does not conflict with any element of the April 2021 VA medical opinion. The April 2021 VA medical opinion does not rely upon any assertion that the Veteran's post-service noise exposure was as loud or as severe as the in-service noise exposure; rather, the VA medical opinion relies upon the findings that the Veteran is objectively shown to have retained normal hearing following the in-service noise exposure (without significant shift of hearing thresholds) and that his later post-service hearing loss disability followed at least some manner of post-service hazardous noise exposure. Alternatively, if the Veteran's statement during the November 2015 VA consultation was intended to indicate that he had literally not experienced any occupational or recreational noise exposure in 48 years of post-service life including substantial periods working as a coal miner, a truck driver, and a farmer, the Board finds that such an assertion is not reasonably credible as it is not consistent with other evidence of record, including the 2021 medical opinion. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The April 2021 VA examination report with medical opinion is competent probative evidence indicating that the Veteran's current hearing loss is unlikely etiologically linked to the Veteran's military service, with a rationale including consideration of the Veteran's in-service noise exposure, documented objective audiometric data, and the Veteran's post-service occupational history. As there is no contrary medical opinion of record, the April 2021 VA medical opinion is persuasive. The Board acknowledges the Veteran's assertion that his current bilateral hearing loss is related to military noise exposure. As a lay person, the Veteran is competent only to provide statements within his own personal knowledge, such as things he can witness or experience with his own senses, but not statements requiring expertise or special training. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159 (a)(2). Questions as to the cause of hearing loss require some type of expertise or specialized training. The Board notes that the Veteran has asserted, including in a June 2020 written statement, that "If the doctor said less than 50% probability, then it is my opinion that this proves that I have some hearing loss due to service." The Board wishes to clarify to the Veteran that the pertinent evidence in this case indicating less than a 50 percent probability that the Veteran's hearing loss is causally linked to his service is discussing the likelihood (or lack thereof) that -any- relationship exists. It appears the Veteran may have interpreted some of this evidence as identifying a portion of the Veteran's hearing impairment that is attributable to service; however, the Board does not find that the evidentiary record in this case contains such an attribution from any competent medical evidence. The Board also notes that some of the Veteran's statements of record, including in August 1993 and April 1994, have reported his recollection of information provided to him verbally by "VA doctors." The Veteran's statements cannot satisfy the need for competent evidence to factually establish medical assertions. The U.S. Court of Appeals for Veterans Claims has held that a lay person's statement recalling what a physician told him/her, i.e., hearsay medical evidence, cannot constitute the medical evidence, as the connection between what a physician said and the layman's account of what he/she purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence. See Robinette v. Brown, 8 Vet. App. 69 (1995). In summation, the preponderance of the evidence of record is against the claim. The evidence is not in equipoise, and thus the benefit of the doubt is not for consideration. The Veteran's claim of service connection for bilateral hearing loss must be denied. While the Board's decision cannot be favorable to the Veteran, the Board would like to thank him for his honorable service. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.