Citation Nr: 21042075 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 15-31 777 DATE: July 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence establishes that the Veteran's current bilateral hearing loss disability did not have its inception during active duty, sensorineural hearing loss was not manifest to a compensable degree within one year of separation, continuity of symptomatology is not established, and the current bilateral hearing loss is not otherwise causally related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1133, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1983 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for bilateral hearing loss. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2018. A transcript is of record. In February 2019 and November 2020, the Board remanded the matter for additional evidentiary development. A supplemental statement of the case (SSOC) was issued in April 2021. The matter has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss is caused by noise exposure associated with his military duties as an armor crewman. At his June 2018 Board hearing, the Veteran described "[a] very lot of noise" during service, including from weapons fire and the operation of M60 tanks. The Veteran also reports a long history of decreased hearing acuity since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, service connection for certain chronic diseases, including other organic diseases of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran's service personnel records reflect that his military occupational specialty was armor crewman, a position consistent with noise exposure. The Veteran's service treatment records show that at his September 1982 entrance examination, his hearing acuity was tested via audiogram. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 0 10 LEFT 5 0 0 5 10 On his accompanying Report of Medical History, the Veteran denied ear, nose, or throat trouble, running ears, hearing loss and ever having worn hearing aids. In-service treatment records show that in September 1986, the Veteran sought care for a right earache. He reported having gone swimming about a week and a half prior. The Veteran reported he noticed draining and tinnitus but he denied hearing loss. He was diagnosed as having right otitis media and externa and prescribed medications, including a course of antibiotics. On follow up in October 1986, the examiner noted that there was no longer ear pain, tinnitus or drainage. The assessment was status post right otitis media and externa. No complaints or findings of hearing loss were recorded. In January 1987, the Veteran underwent a reference audiogram following exposure in noise duties. At the time of the audiogram, it was noted that the Veteran had no ENT (ear, nose or throat) problems and that he had been issued triple flange hearing protection. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 5 LEFT 5 0 0 5 5 The remaining service treatment records are negative for complaints or findings of hearing loss. The Veteran did not undergo a separation examination. See e.g. December 2013 Report of General Information. In connection with his separation from active duty, in July 1987, the Veteran submitted an original application for VA compensation benefits, seeking service connection for osteoarthritis of the right hip. The application is silent for any mention of hearing loss, as is medical evidence assembled in connection with the claim. That evidence includes the results of a November 1987 VA medical examination which showed that examination of the Veteran's ears was normal at that time. The July 1987 examiner further found that no hearing loss was present. The record on appeal contains VA and private clinical records, dated from October 2004 to September 2013. These records are negative for complaints or findings of hearing loss. Repeated examination of the head, eyes, ears, nose and throat (HEENT) during this period was consistently normal in all pertinent respects. In May 2013, the Veteran submitted a claim of service connection for bilateral hearing loss. In support of his claim, the Veteran submitted a June 2013 statement from his spouse, who reported she met the Veteran in the Fall of 1993. She recalled having to repeat herself or talk in a louder tone in order for the Veteran to hear her. In a February 2014 statement, the Veteran recalled during his active service, the concussion from the firing of the main gun inside his tank would cause momentary hearing loss, even though he was wearing hearing protection. He indicated that his VA treatment provider agreed with him that his hearing loss was due to service because "even wearing ear protection and CVC Helmets could not have blocked out a massive amount of concussion noise" to which he was exposed. In connection with his claim of service connection, the Veteran was afforded a VA hearing loss examination in February 2014. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 15 20 30 LEFT 5 5 20 40 45 Speech recognition using the Maryland CNC word list was 100 percent in the right ear and 100 percent in the left. The examiner diagnosed the Veteran as having sensorineural hearing loss but opined that the hearing loss was not at least as likely as not caused by or a result of service. The examiner noted that because both the September 1982 and January 1987 audiograms conducted during service reflected normal hearing, there was no objective evidence of noise injury and no basis to conclude that the Veteran's current hearing loss was associated with service. During his June 2018 Board hearing, the Veteran testified that in the course of his military duties as a tanker, he was exposed to loud noises from machine guns and tank fire as well as from the operation of the tank itself. He testified that after service, he worked at the Ford Motor Company for 10 years until 2005 and was required to wear hearing protection. However, he recalled having experienced decreased hearing acuity since service, prior to working at Ford Motor Company. At the hearing, the Veteran submitted the results of a private audiogram conducted in June 2018. The pure tone thresholds were reported in graph form. The U.S. Court of Appeals for Veterans Claims (Court) has held that interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). Here, the Board finds that the graph reflects that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 25 30 45 LEFT 10 10 25 50 60 Word recognition was 100 percent in the right ear and 95 percent in the left ear. The Veteran was afforded a VA hearing loss examination in October 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 25 30 45 LEFT 5 10 20 50 55 Speech recognition using the Maryland CNC word list was 98 percent in the right ear and 98 percent in the left. The examiner diagnosed the Veteran as having sensorineural hearing loss but opined that the hearing loss was not at least as likely as not caused by or a result of an event in military service based upon a lack of evidence of hearing loss in service, or within six months of discharge. The Veteran was afforded a third VA hearing loss examination in April 2021. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 00 05 30 35 50 LEFT 00 00 25 50 60 Speech recognition using the Maryland CNC word list was 96 percent in the right ear and 96 percent in the left. The examiner diagnosed the Veteran as having sensorineural hearing loss but opined that the current hearing loss was less likely than not incurred in or caused by an in-service injury, event or illness. In explaining his rationale, the examiner acknowledged the Veteran's reports of in-service noise exposure as well as the fact that his MOS carried a high probability for hazardous noise exposure. The examiner indicated that the Veteran's exposure to hazardous noise during service is "readily conceded." He explained, however, that simply being exposed to hazardous noise does not mean that a noise injury is inevitable. Rather, there would have to be objective evidence or data demonstrating that a noise injury occurred during and related to service. The examiner explained that he had considered the Veteran's reports of decreased hearing acuity in service and thereafter. He specifically noted the Veteran's February 2014 statement of momentary hearing loss when the main gun of his tank would fire. The examiner indicated that the Veteran's statements were consistent with the fact that noise exposure such as from weapons fire could cause threshold shifts but that these shifts were temporary. In that regard, the examiner explained that the audiograms performed during service affirmatively established that there was no permanent damage during service. The examiner also considered the June 2018 statement from the Veteran's spouse who noted that as of the Fall of 1993, she had to repeat herself and speak more loudly in order for the Veteran to hear her. The examiner explained that although difficulty understanding speech is indeed a symptom associated with hearing loss, it was not a diagnosis of hearing loss itself, nor does it time lock or otherwise associate the Veteran's hearing loss with military service. Regarding the Veteran's June 2018 testimony that he has had hearing difficulty since separation from active service, although difficulty hearing is a symptom associated with hearing loss, difficulty hearing is not itself a diagnosis of hearing loss. The examiner noted that the clinical record on appeal did not show the presence of hearing loss before 2014. Regarding the Veteran's statement that he worked for the Ford Motor Company (FMC) from 1995 to 2005 in a position where he was required to wear hearing production, the examiner indicated that this simply suggests that noise damage from work with FMC may have been less likely, particularly without audiograms performed during this period, and does not establish that a post-military noise injury or other injury to the ear did not or could not have occurred. With respect to whether the current hearing loss was nonetheless related to service, the examiner explained that the audiograms conducted during service both showed that the Veteran had normal hearing without significant threshold shifts (i.e. 15 dB as defined by The National Institute for Occupational Safety and Health), most notably in mid to high frequencies which are known to be particularly sensitive to acoustic trauma. The examiner explained that this is etiologically relevant because the Institute of Medicine had found that the most profound auditory effects of noise exposure occurred immediately following exposure which suggested that, if caused by military noise exposure, hearing loss and/or threshold shifts would have had an onset during service and/or would be present at separation. After considering the record in its entirety, including the lay evidence, the clinical evidence, and his expertise in the field of audiology, the examiner ultimately concluded that it was less likely than not that the Veteran's current hearing loss was related to service. Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. As to the first element necessary to establish service connection, a current disability, the Board finds that the criteria have been met. As reflected above, at the February 2014 VA audiology examination, the Veteran did not meet the criteria for a right ear hearing loss disability, although a left ear hearing loss disability was shown at that time. Subsequent audiograms conducted in June 2018, October 2019, and April 2021 show that the Veteran met the criteria for a current hearing loss disability in both ears. 38 C.F.R. § 3.385. With respect to the second element necessary to establish service connection, an in-service disease or injury, the Board finds that the criteria has also been met. The Board first finds that the most probative evidence shows that an in-service disease, hearing loss, was not present during active duty. As reflected above, the audiograms conducted during active duty affirmatively established that the Veteran's hearing acuity was normal. However, the Board finds that the record contains probative evidence of noise exposure. The Veteran's statements of in-service noise exposure are both competent and credible. Moreover, they are consistent with his MOS. To the extent that noise exposure constitutes an injury, the Board finds that this criterion has been met. With respect to the third element necessary to establish service connection, a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against the claim. As reflected above, in April 2021, a VA audiologist examined the Veteran and reviewed the record and concluded that it was less likely than not that the current hearing loss disability was incurred in or otherwise causally related to service, including in-service noise exposure. The Board finds that the opinion is highly probative. It was based on a review of the claims file, consideration of the relevant lay and medical evidence, and the opinion was accompanied by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board has considered the Veteran's statement that his VA primary care provider felt that his hearing loss was the result of in-service noise exposure but assigns this evidence lower probative weight than the opinion of the April 2021 VA examiner. The Veteran did not relay his primary care provider's rationale and there is no indication that that provider had the benefit of reviewing the claims file, unlike the April 2021 VA examiner. For these reasons, the Board assigns more probative weight to the April 2021 VA medical opinion. The Board has also considered the contentions of the Veteran that his current hearing loss is related to in-service noise exposure. The Veteran is competent to report the circumstances of his service, including his exposure to loud noise, and his symptoms of difficulty hearing. It is well established that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Veteran is not competent to diagnose a hearing loss disability for VA purposes or determine the etiology of hearing loss because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning, as well as interpretation of complex diagnostic testing. Internal physical processes are not readily observable and are not within the competence of the Veteran in this case, as there is no adequate foundation in the record to conclude he has the necessary medical training or skills. The Board notes that the record reflects that the Veteran has been diagnosed as having sensorineural hearing loss, a specifically enumerated chronic disease. Thus, the Board has considered whether service connection on a presumptive basis may be established under 38 C.F.R. § 3.309(a), but finds that the preponderance of the evidence is against the claim. First, as reflected above, the most probative evidence shows that chronic sensorineural hearing loss was not diagnosed during service or within the first post-service year. Audiograms conducted during active duty affirmatively established normal hearing acuity. In addition, the November 1987 VA examination showed that hearing loss was not present at that time and there is no other probative evidence of a hearing loss disability within one year of discharge. The Board has considered the Veteran's statements of decreased hearing acuity in service and thereafter, but finds that continuity of symptomatology has not been established. As reflected above, in April 2021, a VA examiner considered the Veteran's statements but concluded that they were not necessarily indicative of a chronic hearing loss disability. For the reasons explained above, the Veteran is not competent to provide a link between his current sensorineural hearing loss disability and his reported decreased hearing acuity since service. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015) (holding that to establish service connection based on continuity, the record must contain evidence of a link between the present disability and the post-service continuity of symptoms). In sum, the most probative evidence establishes that the Veteran's current bilateral hearing loss disability did not have its inception during active duty, sensorineural hearing loss was not manifest to a compensable degree within one year of separation, continuity of symptomatology is not established, and the current bilateral hearing loss is not otherwise causally related to an in-service injury or disease. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Penn, Associate 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.