Citation Nr: 21041501 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-16 233 DATE: July 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for Methicillin-resistant Staphylococcus aureus (MRSA) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the claimed bilateral hearing loss began during active service, or is otherwise related to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran's MRSA began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2019). 2. The criteria for service connection for MRSA are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1992 to February 2014. The Veteran attended a Board hearing by the undersigned Judge in January 2021 and a transcript of the proceeding is of record. Service Connection Generally, in order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is the result of his active service. Based on the following evidence of record, the Board finds that service connection is not warranted for bilateral hearing loss. 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 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 (2018). Further, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85(a) (2018). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of bilateral hearing loss. Further, these records are silent for auditory readings that meet the threshold to qualify as hearing loss for VA purposes. In July 2015, the Veteran attended a VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) examination. The examiner diagnosed normal bilateral hearing and opined that it was less likely as not caused by or a result of an event in military service. The rationale provided was: The veteran's C-file was reviewed. Based on the veterans report and documents in the C-file (DD 214 and/or other documents in the C-file) the veteran was exposed to hazardous noise levels while in service. Hazardous noise exposure while in service is conceded. The veteran's report of noise exposure and subjective report of hearing loss while in service were taken into consideration in rendering this opinion. Electronic hearing testing conducted at enlistment, during service, near discharge, and todays audiological assessment shows the veteran did not have a significant threshold shift beyond normal variability while in service. Therefore the evidence of record shows it is unlikely the veteran had hearing injury while in service. In the judgment of the examining Audiologist thresholds measured while in service are within normal measurement variability. It is important to note no reference in this opinion was made to "normal hearing." The examiner is familiar with the Hensly v Brown decision 1993. All available evidence is considered by the examining Audiologist when rendering an opinion on hearing loss and/or tinnitus. While many factors are involved, one critical issue for determining hearing loss related to noise exposure while in service is "did the veteran have a significant threshold shift beyond normal variability/normal progression while in service?" Evidence in this case clearly and convincingly show the veteran did not have a significant threshold shift beyond normal variability while in service. It is also important to know behavioral measurements always involve some degree of variability and that such differences do not constitute injuries. A determination of significant threshold shift beyond normal variability caused by or a result of noise exposure while in service is made by the expert in area (Audiologist) on a case by case basis after a careful review of all evidence. The evidence in this case clearly and convincingly shows the veteran did not have hearing injury while in service. Therefore the evidence of record clearly and convincingly rebuts, if so stated, the veterans subjective report of hearing loss while in service. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. The examiner concedes noise exposure in service; however the evidence shows there was no noise injury while in service. This is not at all contradictory. The Institute of Medicine (IOM) clearly indicated in its landmark study of noise injury in military service it is difficult if not impossible to predict who will be noise exposed and if they are so exposed who will suffer noise injury. It is important to know not everyone who is exposed to hazardous noise will suffer noise injury, and that delayed onset hearing loss due to previous noise exposure is unlikely to occur. Therefore if the evidence shows there has been no significant threshold shift beyond normal variability while in service (no hearing injury while in service) any hearing loss occurring following service is less likely as not caused by or a result of noise exposure while in service. Many factors can contribute to hearing loss and/or tinnitus following service such as recreational, occupational, environmental noise exposure, aging, disease, medications, environmental pollution, genetic/hereditary factors, smoking, etc... Audiograms provide objective evidence of noise injury. In the absence of audiometric evidence of noise injury while in service, an affirmative opinion that the veteran suffered some latent undiagnosed noise injury is utter speculation and directly contradicts the objective evidence of record. The IOM 2006 study was commissioned by congress to, among other issues, address the question "is there delayed onset hearing loss?" IOM reviewed numerous animal and human studies. After reviewing all studies IOM found "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." The delayed affect to which IOM was referring to was delayed hearing loss. More recent animal and human studies have been reviewed by this examiner. These studies, while elegant and important, do not overturn the conclusions of the IOM regarding delayed onset hearing loss. Based on electronic hearing testing conducted at enlistment, during service, near discharge, and the veterans current audiological assessment it is my opinion the veteran did not have hearing loss/hearing injury while in service. Delayed onset hearing loss and tinnitus due to noise exposure are unlikely to occur. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. Therefore it is my opinion the veteran's hearing loss and reported tinnitus are less likely as not caused by or a result of noise exposure while in service. In this case, there is no medical opinion linking the claimed disability with service, and the July 2015 opinion which addresses the question is based on an accurate and complete medical history and the examiner substantiates his conclusion with reference to the history and the particular presentation of the Veteran's claimed bilateral hearing disability. The Board has considered the Veteran's lay assertions as to the etiology of his condition. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the medical etiology of claimed bilateral hearing loss, as he lacks medical expertise. The Board finds the opinion of the July 2015 examiner to be more probative in this regard. The examiner considered the Veteran's history, and ultimately concluded that from a medical perspective, it is less likely that his claimed bilateral hearing loss is related to service. In conclusion, the weight of the evidence is against the claim for service connection for bilateral hearing loss. Entitlement to service connection for MRSA The Veteran contends that his MRSA is the result of his active service. STRs indicate a February 2012 visit for a painful beltline bump that led to a final assessment of MRSA and an April 2015 visit for a skin infection on the chin that indicated a diagnosis of MRSA. In July 2015, the Veteran attended a VA Skin Conditions DBQ. The examiner diagnosed, in pertinent part, isolated episodes of MRSA infections of face, upper extremities and torso; treated; resolved without residuals with a diagnosis date of 2012 and 2015. The examiner further stated that the Veteran has no symptoms associated with this condition. Finally, the examiner opined that the Veteran does not have a diagnosis of MRSA that was at least as likely as not due to his service. The rationale provided was: The STR clearly documents the diagnosis and treatment for 4 isolated episodes of MRSA infections on the Veteran's upper extremity (right), torso and face. These episodes were treated and resoled without residuals. In February 2018, an addendum opinion was provided. The examiner notes, in pertinent part, that: A positive opinion was given for the 4 isolated episodes of MRSA: 2 occurred while the veteran was on active duty: Feb 2012 and June 2012 episodes. [I]t asked did the veteran have a diagnosis of MRSA which was noted in service: I gave a positive opinion that yes he did have a diagnosis of MRSA while on active duty but that those isolated episodes were treated and resolved. The confusion is that the examiner included the two post service episodes of March and April 2015 in that opinion and should have only stated the two episodes in 2012 occurred while on active duty and that the two episodes in March 2015 and April 2015 were not related to the inservice infections and were unrelated to the inservice episodes noted in Feb 2012 and June 2012. The basis of my opinion was the inservice medical records which clearly documented the veteran did have isolated episodes of MRSA and were treated and resolved. Again, I did not imply or state that any of the infections were related or causative of any future infections. And: The post service episodes of MRSA infection in March 2015 on right upper arm and the MRSA infection in April 2015 on the veteran's chin were not related in any way to the inservice infections noted on the lower abdominal regions nor were they an aggravation of the inservice infections as the post service infections were in completely different and remote areas of the body from the inservice ones. While the remaining evidence of record notes several other instances of MRSA, none of the records speak to its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. In this regard, the Board finds the VA opinions of record the most probative evidence of record as to the etiology of the Veteran's MRSA because they are based on an accurate medical history and provides an explanation that contain clear conclusions and supporting data. Further, the record is silent for any medical opinion in support of the Veteran's contention and in opposition to the opinions provided by the VA examiners. The Board considered the Veteran's lay assertions as to the etiology of his disability. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the etiology of his MRSA. The Veteran has not been shown to have specialized medical knowledge that would be necessary to provide a competent opinion regarding service connection. The Board finds the opinions of record to be more probative in this regard. The examiners considered the Veteran's history, and ultimately concluded that from a medical perspective, it is less likely that his current disability was due to his active service. In conclusion, the weight of the evidence is against the claim for service connection for MRSA. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.