Citation Nr: 21041878 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-38 805 DATE: July 10, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The earliest clinical evidence of right ear hearing loss disability is not until several decades after the Veteran separated from service, and only after intervening ("intercurrent") post-service noise exposure; consequently, the preponderance of the evidence is against finding that his right ear hearing loss disability began during his military service, or within a year of his discharge, or that it is otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for right ear hearing loss disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to June 1978. In July 2019, in support of this claim, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board subsequently denied this claim in October 2019, and in response the Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In July 2020, the CAVC granted a Joint Motion for Remand (JMR), vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication pursuant to agreement in the JMR. In granting the JMR, the CAVC agreed the Board had erred in its decision in failing to adequately discuss contradictory or qualifying aspects of an Institute of Medicine (IOM) report, which a March 2016 VA compensation examiner had cited and which the Board had relied on in denying the claim, or whether the examination report is adequate given the Court's decision in McCray v. Wilkie, 31 Vet. App. 243 (2019). In February 2021, after receiving this case back from the CAVC, the Board, in turn, remanded the claim back to the Agency of Original Jurisdiction (AOJ), i.e., local Regional Office (RO) to obtain the additional medical comment (addendum opinion) needed to address the failings of the opinion the Board had relied on in previously denying this claim. And this needed additional medical comment since has been provided and rectifies the failings in the prior opinion. So, there has been the required compliance, certainly the acceptable substantial compliance, with this remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that his right hear hearing loss is attributable to his service. There is no disputing he has right ear hearing loss sufficiently severe to constitute a ratable disability according to the threshold minimum requirements of 38 C.F.R. § 3.385. However, as for the cause of this right ear hearing loss, the most probative evidence is against finding that it was incurred during his service, or manifested to a compensable degree within a year of his discharge, or is otherwise the result of his service. Thus, there is not the required attribution of this disability to his service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran's service treatment records (STRs) contain several audiograms, but all of them reflect normal hearing acuity in his right ear. A May 1974 audiogram (the month prior to his entrance into service) revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 - 10 An August 1976 audiogram revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 5 15 An October 1976 audiogram revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 0 10 On April 1978 audiologic examination in anticipation of the Veteran's discharge from the military, there were the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 Thus, the Veteran had normal hearing acuity in his right ear during his service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (indicating that normal hearing acuity ranges from 0 to 20 decibels (dB), and that a greater than 20-dB loss is indicative of hearing impairment). Also, notably, according to a February 1976 Report of Medical History, he expressly denied having hearing loss. The Veteran's military service ended in June 1978. Although it since has been determined that the Veteran has "mixed" hearing loss in his right ear (meaning both sensorineural and conductive), there is no indication of sensorineural hearing loss in this ear within a year of his separation from service, meaning by June 1979, to in turn warrant presuming it was incurred during his service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Sensorineural hearing loss, particularly, is considered a type of organic disease of the nervous system, so one of the "chronic" diseases, per se, contemplated by these statutes and VA regulations. The record on appeal includes a July 2016 supporting statement from the Veteran's spouse, M.L. She indicated that she has known him since 1977 so since when he was in service, and that, as long as she has known him, he has had a hearing problem. She has not specified which ear or if both ears had hearing impairment. Also, in this regard, the Board points out that the Veteran already is in receipt of service connection for left ear hearing loss, so VA already has conceded that the hearing loss in this other ear is the result of his service. But, as concerning the right ear hearing loss now at issue, his spouse is not competent to attribute the hearing loss in this ear (right ear) to his service. Moreover, since hearing loss in the right ear was not initially "noted" during his service, the Veteran and his spouse cannot etiologically link his right ear hearing loss to his service by alternatively showing continuity of symptomatology under 38 C.F.R. § 3.303(b) since his service. See Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). Thus, their lay statements concerning this are not probative to establishing the required causation. See Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The earliest clinical evidence of right ear hearing loss disability is not until in 2011, more than three decades after the Veteran separated from service. That long a lapse of time between his separation from service and the earliest documentation of this now claimed disability is a factor when considering whether it originated during his service, or within a year of his discharge, or is otherwise related or attributable to his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). An April 2011 private clinical record notes that the Veteran reported decreased hearing bilaterally (meaning in both ears). An October 2011 private record similarly reflects that he reported difficulty with his hearing. Sensorineural hearing loss was diagnosed. Tympanometry could not be established in either ear due to the inability to obtain an adequate seal. In September 2011, he indicated that he wanted to file a claim for service connection for a right ear broken ear drum and hearing loss. A March 2012 VA examination report affirms the Veteran has sensorineural hearing loss in his right ear. The March 2016 VA examiner already mentioned concluded it is less likely than not the Veteran's current hearing loss is causally related to his active military service. The report explains that he has mixed (sensorineural and conductive) hearing loss in his right ear. In explanation, this examiner pointed out that the Veteran's military separation examination documented normal hearing at all frequencies in the right ear with no significant positive threshold shifts when compared to his enlistment examination. But, relevant to this appeal, that March 2016 VA examiner relied in part on a 2005 IOM investigation finding insufficient evidence to support the notion of delayed-onset hearing loss. This March 2016 examiner considered the Veteran's contention of noise exposure in service and consequent injury (acoustic trauma) but determined that it did not result in any significant change in his hearing acuity at least in his right ear. In granting the July 2020 JMR, however, the CAVC agreed the Board had erred in its prior October 2019 decision in failing to adequately discuss contradictory or qualifying aspects of the 2005 IOM report cited by the March 2016 examiner. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Thus, this claim was remanded in February 2021 pursuant to the July 2020 JMR the CAVC had granted to obtain an addendum opinion so that an examiner could provide more explanation for the prior unfavorable opinion, including specifying what extent of change in threshold levels in service would be considered significant. Additionally, the remand directed the examiner to address, pursuant to McCray, the significance, if any, of the seemingly contradictory findings of the IOM study noting "[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." See id. Consequently, in March 2021, the same audiologist that had examined the Veteran in March 2016 provided an addendum opinion, explaining that, "[f]or the purposes of this examination, a significant positive threshold shift is defined as a worsening in hearing threshold greater than or equal to 15 dB at any one frequency, or a worsening in hearing thresholds of 10 at 3 or more consecutive frequencies." Consequently, absent that significant of a threshold shift, the Board takes judicial notice of the examiner's finding that no such "significant positive threshold shift" occurred during the Veteran's service. Also, with regards to the Veteran's prior audiological examination, the examiner explained that the Veteran had presented in March 2016 with mixed hearing loss, meaning the hearing loss had both sensorineural and conductive components. As directed by the February 2021 Board Remand, she explained that sensorineural components to hearing loss typically represent permanent, nerve-related hearing loss. Sensorineural hearing loss can be caused by a variety of factors, including, but not limited to, a history of hazardous noise exposure. Conductive components to hearing loss may be permanent or temporary and represent hearing loss that is related to ineffective mechanical transmission of sound by the ear. This can be due to injury, such as a perforated eardrum or a blockage of ear wax; it can also be due to illness, such as an ear infection or fluid buildup in the middle ear space. This VA examiner further explained that a diagnosis of mixed hearing loss "simply means that the [Veteran] has a permanent, nerve-related hearing loss, and an additional hearing loss related to a mechanical issue causing poor transmission of sound through the ear." She concluded by noting "[t]he fact that this Veteran had a diagnosis of mixed hearing loss at the time of his audio C&P examination would have no bearing on whether or not the hearing loss was caused by military noise exposure." In addition, with regards to the Veteran's contention that his damaged ear drum was the result of his service, this VA examiner opined that, given the documentation showing no significant positive shifts in right ear hearing sensitivity during his military service, "the medical evidence in this case rebuts the claim of damage to right ear hearing occurring during military service." This VA examiner also, as directed, provided further discussion of the 2005 IOM study, which, as she explained more specifically, investigated the evidence for delayed-onset hearing loss following hazardous noise exposure and found insufficient evidence to support the existence of delayed-onset hearing loss. She also conceded that "more recent studies, including research by Dr. Sharon Kujawa, have revealed that there is some evidence that delayed-onset hearing loss may occur in rodent subjects well after hazardous noise exposure has stopped. This line of research has led to speculation that similar effects may occur in humans." However, that said, this VA examiner ultimately noted the following: [F]indings in rodent studies cannot necessarily be extrapolated to human subject, given the genetic and physiological differences that exist between humans and rodents. There have been many instances of lines of research yielding results in rodent subjects that cannot be replicated in human subjects. At this time, this examiner's understanding is that there have been no peer-reviewed scientific studies demonstrating clear evidence for the existence of delayed-onset hearing loss in humans. Therefore, based on a review of this Veteran's c-file and the pertinent literature as it is currently understood, it is this examiner's opinion that this Veteran's right ear hearing loss is not at least as likely as not related to military service, as documentation in the c-file shows no significant positive shifts in right ear hearing during military service. The Board observes that, in McCray, the Veterans Court (CAVC) stated that "a non-exhaustive list of factors that, depending on the case, may be relevant considerations in determining the adequacy and probative value of a medical opinion [are]: whether there was personal examination of the patient; the expert's knowledge and skill in analyzing the data; whether the opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two; whether the opinion is clear and susceptible of only one meaning; the expert's familiarity with pertinent medical history; whether there is any inconsistency in the expert's statements; whether the expert has provided a thorough and detailed opinion about an area within his or her expertise; whether the expert has provided factually accurate, fully articulated, and sound reasoning for his or her conclusion; whether the expert relied on sufficient facts or data; whether the opinion is the product of reliable principles and methods; and whether the opinion is the result of principles and methods reliably applied to facts. See 31 Vet. App. 243 (2019); See also Nieves-Rodriguez, 22 Vet. App. at 304; D'Aries, 22 Vet. App. at 108; Stefl, 21 Vet. App. at 123; Daves, 21 Vet. App. at 51-52; Guerrieri, 4 Vet. App. at 470-71." In this regard, the 2005 IOM article entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus, was a mega-study of 15 months' work evaluating many other peer-reviewed journals, books and reports. The committee members had expertise in audiology, bioacoustics, military preventive medicine, occupational medicine, industrial hygiene and hearing conservation programs, epidemiology and otology. In part, the committee was charged to determine whether hearing loss from acoustic trauma, hearing threshold shifts, or tinnitus, was immediate or delayed onset, cumulative, progressive, or any combination. A chapter of the 2005 IOM committee's report was to determine the effects of noise on hearing threshold as well as the time course for the development of hearing loss from noise exposure. The 2005 IOM report noted that the "hallmark of noise-induced hearing loss is a characteristic noise notch in the audiogram that typically occurs between 3000 and 6000 Hertz." The 2005 IOM report used five standards of evidentiary proof as to evidence of a delayed onset of hearing loss following exposure to acoustic trauma, and these were whether there was (a) sufficient evidence of an association, or (b) not sufficient evidence of an association; or (c) limited or suggested evidence of an association; (d) sufficient evidence of an association; or (e) sufficient evidence of a causal relationship. The report concluded that there was sufficient evidence that the most pronounced effects of a given noise exposure were audiometrically measurable immediately following the exposure. There was sufficient evidence that the most recovery to stable thresholds occurred within 30 days of the noise exposure. There was not sufficient evidence that noise-induced hearing loss developed much later in one's lifetime, long after the cessation of the noise exposure based on longitudinal studies. Further, based on data available on the recovery process following noise exposure. it was unlikely that such a delayed effect would occur. Because of this dispute over the medical article, the Court held that, in addition to other factors, there was for consideration "whether the medical text evidence that the medical opinion relies on contains qualifying or contradictory aspects." McCray, 31 Vet. App. 243 (2019). If so, the Board had to "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." Id. at 11 and 12. In McCray, portions of the 2005 IOM report were cited by the appellant as in stating "that definitive scientific studies on delayed-onset hearing loss have not been performed shows that the scientific community has not definitely determined that delayed onset-hearing loss is not possible." Id. at 6. However, the Board now points out that, even if it could not be scientifically definitively determined that hearing loss could not be of delayed onset, there is no corollary that the absence of such scientific evidence means that a delayed onset of hearing loss following acoustic trauma is probable and, as such, places the nexus question in relative equipoise. While a medical principle need not reach scientific consensus to adequately support a grant of VA benefits, the nexus element in a general service connection claim must be substantiated by a probability of a connection between the claimed disability and an incident of military service rather than a mere possibility of such a connection. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009); Bloom v. West, 12 Vet. App. 185, 187 (1999); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Here, the Board finds that the IOM study does not, when read as a whole, contain significantly contradictory findings or conclusions and that the opining VA audiologist in March 2016 and March 2021 relied on sufficient facts and data specific to this particular claim, provided factually accurate, fully articulated, and sound reasoning for the conclusion reached, and the opinion was the product of the application of reliable principles and methods reliably to facts of this case. Thus, there is not the required correlation of the hearing loss in this ear with the Veteran's military service. In his pleadings, the Veteran has contended that his ruptured right ear drum and right ear hearing loss began in service, in 1975. There are no STRs noting this, although the Board acknowledges that his STRs between his time of entrance into service and 1976 are unavailable. Regardless, his hearing was normal in service, despite, as already mentioned, being tested several times, and in 1976 he denied having hearing loss. He is not competent to state that a ruptured ear drum in service, which did not cause abnormal hearing in service, would instead cause it decades later. Equally significant is that his clinical records note a much later onset of a right ear perforated ear drum, and his STRs note hearing impairment only as concerning his left ear (which, as mentioned, is already service connected). The Veteran contends that his right ear hearing impairment is worse than his left ear hearing loss and that his hearing on a daily basis is dependent on his left ear. He notes that a hole was found in his ear at a VA facility (see Board hearing transcript). He also has alleged that there is a "mix-up" of his left and right ear. However, the results of examinations do not support this notion (i.e., his STRs show worse hearing acuity in his left ear, post-service VA examinations also show worse hearing acuity in his left ear, and a July 2016 VA clinical record notes asymmetric hearing loss worse in the left ear.) The clinical records reflect that, in May 2016, he displayed cold symptoms that then worsened into bronchitis. It was noted that, "along with this, he noticed decreased hearing with aural pressure in the right ear and has had sharp pain with drainage that has been improving." In August 2016, he was observed to have a small perforation of the right ear drum. The records indicate that this right ear pressure, discharge, perforation, and hearing loss are of much more recent inception than in service and correlate to a 2016 sinus/upper respiratory infection. The Board also finds that the audiogram findings in service are more credible (i.e., reliable) and, thus, more probative than his statements concerning his hearing acuity made several decades after service, so long after the fact, and/or made for purposes of receiving VA compensation. The Board realizes that a claim for service connection for a hearing loss disability cannot be summarily rejected because the hearing loss fist manifested after service; VA regulations do not preclude service connection for a hearing loss that first met VA's definition of ratable disability after service. See Hensley, 5 Vet. App. 155, 159 (1993). See also 38 C.F.R. § 3.303(d). However, in this case at hand, the Veteran had normal hearing in his right ear in service on at least four occasions when tested, did not have sensorineural hearing loss in this ear to a compensable degree within a year of his discharge, indeed, did not have clinically documented hearing loss until more than three decades after his separation from service, and there is a competent and credible (so probative) medical nexus opinion affirmatively disassociating the hearing loss in this ear from his time in service. Moreover, there is no countervailing medical opinion. The Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion regarding the origins of this claimed disability. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Although lay persons are competent to provide opinions on some medical issues, a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of hearing acuity, age, acoustic trauma, in-service noise exposure, and post-service noise exposure (notably, since service the Veteran has worked in a meat packing house, factory, and as a lock and dam operator). These etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d1372, 1377 n.4 (Fed. Cir. 2007). For these reasons and bases, the preponderance of the evidence is against this claim, so the benefit-of-the-doubt rule is inapplicable, and the claim resultantly must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kucera, C. B. 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.