Citation Nr: 21041563 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-19 164 DATE: July 9, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's left ear hearing loss disability is related to his active service. 2. The evidence is at least in equipoise as to whether the Veteran's right ear hearing loss disability is related to his active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1959 to April 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. On March 10, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Partial Remand (JMPR) that remanded the issue of service connection for bilateral hearing loss back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated March 22, 2021, notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam). The Veteran and his representative submitted additional evidence within the prescribed 90-day period, along with a waiver of AOJ consideration of this new evidence. 38 C.F.R. § 20.1304(c). The Board will now consider the appeal. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMPR focused on the reasons and bases of the Board's July 2019 denial of the hearing loss claims, noting the Board did not address a favorable private examination and opinion of June 2014, and that it did not consider the Veteran's lay statements without addressing credibility. Here, because this decision grants service connection for the issues on appeal that were addressed by the CAVC's JMPR, the Board considers the Court's remand to be satisfied in full. The reasons and bases for the Board's grant of these issues will be discussed in further detail below. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Hearing Loss Disability General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Bilateral Hearing Loss The Veteran contends that exposure to loud noise during active service caused his current bilateral hearing loss disability. The Veteran stated that he served as an Army artilleryman while on active duty and was exposed to all manner of loud noise, to include the report of rifles, machine guns, and mortars on a regular basis. The Veteran also noted that he was around heavy machines and vehicles that were extremely loud, and that he was not afforded hearing protection during active duty service. First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability that comports with VA's definition of disability resulting from hearing impairment. For 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 of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Both the RO and previous Board decisions involving this claim have conceded hazardous noise exposure for this Veteran in this appeal, and the Board will not disturb that finding. The Veteran received a "whisper test" at service entrance in March 1959 that indicated normal hearing. The Veteran received a separation examination in February 1962, and the audiology examination indicated no hearing loss at that time. The Veteran continued to serve through 1965, but no further military audiology examination was accomplished. The Veteran filed his initial claim for entitlement to service connection to bilateral hearing loss and tinnitus in August 2012. In an August 2019 rating decision, the RO granted service connection for tinnitus. As such, that issue is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Veteran received a VA contract examination for his hearing loss in February 2014. The examiner noted the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, and the results were 15, 35, 45, 70, and 80 for the right ear, and 15, 45, 55, 70, and 80 for the left ear. Maryland CNC testing was 64 percent in each the left ear and 88 percent in the right ear. This examiner provided a negative opinion for service connection, saying it was less likely than not that the Veteran's hearing loss was due to his military service. The examiner stated that the Veteran's hearing loss was more likely due to his post-military occupation as a telephone and electrical company employee. In April 2014, the Veteran received a private audiological examination from Dr. J.W., for the purposes of hearing aid qualification and calibration, noted at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 25, 35, 60, 80, and 95 for the right ear, and 25, 35, 55, 75, and 85 for the left ear. Maryland CNC testing was 40 percent in each the left ear and 48 percent in the right ear. Bilateral sensorineural hearing loss was diagnosed along with tinnitus. This examiner, who had a doctorate in audiology, noted from the Veteran's records and his own statements about having served in artillery units during his miliary service and was exposed to mortars, howitzers, and machine guns. The examiner noted how the Veteran was reassigned from the field to command post operations after experiencing hearing loss in service. The examiner opined that based on the Veteran's hearing tests and his history that it was more likely than not that the Veteran's hearing loss was due to his military service. In June 2014, the Veteran submitted a lay statement from his ex-spouse, who noted she had been married to the Veteran since 1962 while he was still on active service with the Army. She reported she personally observed the deterioration of his hearing from service and after service, and that his hearing examinations over the years always reported that the Veteran's decline in hearing acuity was due to his time working with the artillery and other weapons. She reported the Veteran's statements from service and over time since service that he was never afforded hearing protection and that for as long as she was married to the Veteran, until 1980, that his hearing had deteriorated over time since active service. The Veteran's current spouse also submitted a lay statement in June 2014 where she noted the Veteran had hearing problems when they met each other in 1983, and was told that he had sustained hearing loss due to the exposure to loud weapons and artillery pieces during his Army service in the late 1950s and early 1960s. She noted that the Veteran tended to put off getting medical attention for anything, and that he put up with his hearing loss and tinnitus for years before finally getting professional medical help. Also in June 2014, the Veteran's son provided a lay statement attesting to this father's decline in hearing, noting that the ability to have a simple conversation with his father was worsening, to the point of having to repeat much of the conversation, slowly and in loud tones, in order to communicate with his father. VA provided an addendum opinion in May 2018 to discuss the two opposed opinions. This examiner noted the Veteran's work with the telephone company after military service, working there for over 37 years, and made a statement that the Veteran likely left service because of hearing problems associated with that employment. The examiner continued, saying there is no report of hearing loss at service separation, and that since the relationship of noise and auditory damage is "well-established," that the Veteran's likely etiology of his hearing loss is related to his post-military occupational hearing hazards. The Veteran submitted another private audiological examination performed in November 2019 that was uploaded the claims file in April 2021. Dr. J.E., an audiologist noted the Veteran's history as an artilleryman during military service from 1959 to 1962, and that the main time spent on active duty was around the Army's largest artillery piece, the 155mm howitzer. Dr. J.E. noted at the test frequencies of 1000, 2000, 3000, and 4000 Hertz, the results were 30, 60, 75, and 90 for the right ear, and 40, 60, 70, and 95 for the left ear. Maryland CNC testing was 40 percent in each the left ear and 40 percent in the right ear. The examiner noted the clear loss of normal hearing acuity, and opined it was more likely than not that the Veteran's hearing loss was due primarily to his military service. Dr. J.E. noted that extremely loud noises, those of 90 to 95 decibels or higher, will cause the hearing cells to release amounts of nitrous oxide, causing damage to those cells that enable sensorineural hearing. The examiner considered the Veteran's post-military work in the electrical company to be have been relatively quiet work where he would not have been exposed to occupational noise hazards. The Board notes a mix of opinion but finds the February 2014 and May 2018 VA audiologist's opinion to be of low probative weight because of their conclusory nature with few specifics as to the reasoning of the negative opinion. Each of the two service connection opinions relies on wrong and inaccurate information in formulating their negative opinions, that they rely on a misheard or misinterpreted statement regarding the Veteran's post-service occupational exposure to hazardous noise. Furthermore, the February 2014 examiner infers a 2005 report from the study done by the Institute of Medicine (IOM) entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus (September 22, 2005) (hereinafter IOM Report) saying that with current knowledge of cochlear physiology that there was not sufficient scientific basis for the existence of delayed onset hearing loss, without citation to a particular chapter, finding, or page. The Board notes with emphasis that the United States Court of Appeals for Veterans Claims (Court or CAVC) has previously noted in other similar cases that IOM report upon which the VA examiner referenced that a medical text must do more than just provide speculative generic statements about a disability or the relationship between the disability and purported causal factors. See, e.g., No. 17-1875, p. 11, 2019 U.S. App. Vet. Claims (June 18, 2019) (unpublished) (citing Wallin v. West, 11 Vet. App. 509, 514 (1998)). Furthermore, an excerpt from a generic medical text that does not apply medical principles regarding causation or etiology to the facts of the individual Veteran's case generally won't provide sufficient evidence, standing alone, to serve as the basis for an award of service connection. Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board notes from the IOM report itself that "[t]here 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" and that "definitive studies to address this issue have not been performed." IOM Report, supra at 151-152, available at www.nationalacademies.org/hmd/Reports/2005/Noise-and-Military-Service-Implications-for-Hearing-Loss-and-Tinnitus.aspx. (Emphasis added.) The Board finds here that the February 2014 VA examiner's reliance on general statements from an extensive medical study to the particular facts of this Veteran's case is overly broad and not specific enough to provide any reasonable support of the VA examiner's opinion. To be adequate, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board also questions the level of attention of this September 2020 examiner to the Veteran's claims file, noting that she recorded incorrect information that describe the Veteran's post-service occupational exposure incorrectly and to his detriment in that discussion. On the other hand, the positive opinions offered by the June 2014 and November 2019 examiners specifically noted a review of the Veteran's service history and his conclusions referenced detail of the VA examination and the lay statements of the Veteran, and therefore is considered to be of strong probative value. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board also notes the Veteran's consistent statements over time, and the three detailed, comprehensive buddy statements provided in June 2014. Importantly, there is no reason to doubt the credibility of the Veteran's self-reported history of exposure to excessive noise during service, and experiencing a hearing loss during, and since, service. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The record establishes the Veteran has current bilateral hearing loss considered disabling for VA purposes, and the Board has conceded hazardous noise exposure while in service. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. Competent evidence of a current bilateral hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, all VA and private examinations in the Veteran's claims file establish the presence of bilateral hearing loss. In-service noise exposure is conceded. The Board finds the February 2014 and May 2018 opinions to be of limited probative value because it cites only generalized statements that are conclusory rather than relating the opinion directly to the Veteran's medical and lay evidence. In addition, each of those two VA opinions are based on incorrect facts from the Veteran's record. In contrast, the Board finds the June 2014 and May 2019 positive opinions to be highly probative for reasons stated earlier, and also the lay statements of the Veteran, and his three buddy statements. (CONTINUED ON NEXT PAGE) The Board finds that there is credible evidence of symptoms of hearing loss in service and continuity of symptoms since service. Multiple lay statements from the Veteran and three credible buddy statements all point to continuity of hearing problems for the Veteran since service. When there is an equipoise of evidence, as here, the Veteran prevails on his claims. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss disability is related to his military service. As such, the Board finds a grant of service connection for bilateral hearing loss disability is appropriate. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.