Citation Nr: 21041715 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-34 880A DATE: July 10, 2021 ORDER Service connection for bilateral hearing loss is denied. VETERAN'S CONTENTIONS The Veteran contends that he has bilateral hearing loss as a result of acoustic trauma related to basic training; constant noise on the gun range, throwing grenades, and firing weapons. FINDINGS OF FACT 1. The Veteran was exposed to excessive levels of noise during service. 2. Bilateral hearing loss was not shown in service or for many years thereafter and is not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in June 2018. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board at which times it was remanded for further development. Entitlement to service connection for bilateral hearing loss Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101 (3), 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). "Other organic diseases of the nervous system," which may include sensorineural hearing loss, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1336-38. The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107 (b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Notably however, "section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 159 (1993). "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." Id. at 160. Here, the record reflects that the Veteran has been diagnosed with bilateral hearing loss that meets VA criteria for consideration as a disability. See August 2013 and June 2019 VA Hearing Loss and Tinnitus Examination Reports; 38 C.F.R. § 3.385. As such, the first element of service connection, a current disability, is satisfied. Turning next to service incurrence, the Board finds that the Veteran was exposed to excessive levels of noise in service, based on his consistent statements regarding in-service noise exposure related to his basic training, including constant noise on the gun range, and related to throwing grenades, and firing weapons. In addressing nexus, the evidence of record includes an August 2013 VA Hearing Loss and Tinnitus examination report in which the examiner opined that it was less likely than not that the Veteran's hearing loss was caused by or a result of an event in military service. The examiner reasoned that the Veteran's military audiograms documented normal hearing at entrance and at separation. Therefore, his current hearing loss had to have begun after he was discharged from service. The examiner further reasoned that an Institute of Medicine (IOM) 2005 report concluded that based on current knowledge, noise-induced hearing loss occurs immediately. The examiner explained that there is no scientific support for delayed onset noise induced hearing loss, weeks, months, or years after the exposure event. In a September 2019 addendum an examiner opined that the Veteran's bilateral hearing loss was less likely than not related to service, to include noise exposure. The examiner reasoned that there was no evidence that in-service noise exposure caused hearing loss in either ear during service, within one year of discharge from the service, or that it was causally or etiologically related to noise exposure during service. No evidence of hearing loss occurring during the Veteran's service was found in review of the Veteran's medical record. No medical records documenting complaint of hearing loss or showing hearing status from the Veteran's ETS examination in 1969 until 2010 were found in review of the Veteran's file. The first evidence of hearing loss was not found in the Veteran's medical record until an examination completed in 2010, 40 years after service exit. Citing to the IOM, the examiner further reasoned that based on the anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that delayed effects occurred. In January 2021, the Board remanded the Veteran's claim to obtain an addendum opinion addressing evidence suggesting that noise induced hearing loss can take a long time to be noticeable; evidence suggesting that a single synaptopathic exposure (traumatic event) can accelerate cochlear aging; and the contradictory findings regarding delayed onset hearing loss in the IOM report. In a March 2021 addendum, an examiner opined that the claimed hearing loss was less likely than not related to service, to include noise exposure. The examiner reasoned that although it was documented and conceded that the Veteran was exposed to noise in service, no evidence exists that this exposure caused hearing loss in either ear during service, within one year of discharge from the service, or that it was causally or etiologically related to noise exposure during service. No evidence of hearing loss occurring during service was found in review of the Veteran's medical record. No medical records documenting complaint of hearing loss or showing hearing status from the Veteran's separation examination in 1969 until 2010 were found in review of the Veteran's file. The first evidence of hearing loss was not found in the Veteran's medical record until upon examination in 2010, 40 years after service. Review of the Veteran's claim file revealed normal hearing in both ears upon separation from military service to calibrated audiometric testing at his ETS in 1969. The examiner acknowledged that lay statements, provided by Veteran's friends and family members, may be indicators of difficulty with hearing during the Veteran's life, but they are non-specific insofar as clinical onset and do not refute medical facts, including normal hearing at discharge. Additionally, they are not opinions of medical professionals able to comment on etiology of hearing loss nor are they documentation of medical diagnosis. With respect to a delayed onset theory of the manifestation of noise-induced hearing loss, the examiner acknowledged that based on some recent studies with rodents, a few investigators have speculated that a delayed onset of neural, central, or cochlear changes may occur as a result of noise exposure. The Journal of Neurosciences article referenced in the December 2020 Informal Hearing Procedure is one of these studies. The examiner explained, however, that there exist genetic and physiologic differences between humans and rodents, some of which are even observed among varying inbred strains of rodents used in research. Similar challenges in translational research are well documented in other areas of biomedical investigation, including research in the treatment of cancer and chronic diseases. Given these concerns, the examiner concluded that the IOM report currently remains the most comprehensive review regarding the effects of noise exposure in the veteran population and the IOM report stated that 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. While the IMO indicated that the definitive studies to address this issue had not been performed, it also indicated that based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The Board finds the August 2013, September 2019, and March 2021 VA opinions to be highly probative. The opinions were based on a review of the claims file, relevant facts, and peer reviewed medical literature, and the examiners provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Court's decision in McCray v. Wilkie that discusses the IOM report containing unfavorable findings as well as apparently contradictory findings regarding delayed-onset hearing loss. In McCray, the Court noted that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if an issue is raised by the veteran or reasonably raised by the record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. And, if the Board requires assistance in understanding or interpreting the underlying medical text evidence, it may seek clarification from the medical expert who wrote the opinion or from another source. 31 Vet. App. 243, 249, 257 (2019). Here, the VA examiners relied, in part, on the IOM report. However, the examiners also considered other recent studies on rodents that speculate on delayed onset of hearing loss. Additionally, the examiners acknowledged the specific deficiencies of the IOM report, particularly with regard to the lack of definitive studies on the delayed onset of hearing loss, but then relied on the anatomical and physical data contained within the IOM report. Moreover, the cited medical text evidence was accompanied by a medical opinion from a medical doctor, who has expertise in the field of audiology, and is familiar with the relevant facts of this Veteran's case. In this regard, the opinion shows that the VA audiologists considered the Veteran's reports of in-service exposure to loud noises during basic training, and his STRs, to include the enlistment and separation examinations. In light of these factors, the Board places considerable weight on this probative evidence that goes to nexus. The Board also acknowledges the Veteran's complaints related to his bilateral hearing loss and recognizes that the Veteran is competent to describe symptoms he experienced based on his personal knowledge. Layno, 6 Vet. App. at 470. However, the issue of whether the Veteran has current bilateral hearing loss sustained in service for which service connection may be granted is a complex medical issue which the Veteran is not competent to address. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lastly, the Board acknowledges that the evidence of record includes a June 2018 opinion from a private audiologist stating that it would appear that the Veteran's complaints of hearing loss are at least as likely as not a result of his military service. However, the Board finds the opinion less probative than the VA examiner opinions. There is no indication that the private audiologist reviewed pertinent medical evidence in the claims file, including in-service audiograms. Instead, the opinion appears to be almost entirely based on the Veteran's self-reported medical history. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over than of another when decision makers give an adequate statement of reasons and bases). For this reason, this opinion lacks adequate rationale. Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss was not shown in service or for many years thereafter and is not related to service. Therefore, service connection for bilateral hearing loss is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.