Citation Nr: 21042103 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-59 014 DATE: July 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran does not have a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385. 2. The Veteran's right ear hearing loss disability did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1992 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this matter was previously before the Board in July 2019, when it was remanded for further development. The Board notes that the July 2019 Board remand included the issue of entitlement to service connection for tinnitus. See July 2019 BVA Decision. However, during the pendency of the appeal, an April 2020 rating decision granted service connection for tinnitus. See April 2020 Rating Decision Narrative. Accordingly, as the service connection claim has been granted, that issue is no longer in appellate status as there is no case or controversy presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or 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). Certain diseases, including hearing loss, may be presumed to have been incurred in service when they manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for a recognized chronic disease 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. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500 Hertz (Hz), 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz are 40 decibels or greater; or at least three of the frequencies 500 Hz, 1000 Hz, 2000 Hz, 3000 Hz, 4000 Hz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. Entitlement to service connection for bilateral hearing loss is denied. The Veteran states that he had in-service traumatic noise exposure due to his military occupational specialty (MOS) as a helicopter repairer, which is supported by his DD Form 214. Specifically, the Veteran reports that he has a current bilateral hearing loss disability, which was caused by daily exposure to loud noises from helicopters and repair equipment during service. See July 2012 VA Form 21-4138 Statement in Support of Claim; October 1994 Certificate of Release or Discharge from Active Duty (e.g. DD 214, NOAA 56-16, PHS 1867). A review of the Veteran's service treatment records (STRs) shows an August 1992 enlistment report of medical examination that notes the Veteran's ears and drums to be normal. An audiogram performed in connection with the examination revealed the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 10 0 0 0 0 Left 0 5 0 5 0 An October 1992 health education briefing shows that the Veteran was briefed on the importance of wearing hearing protection in the presence of hazardous noise. At that time, he was fitted with, and instructed in the proper technique for inserting, triple flange ear plugs. Thereafter, the Veteran underwent audiograms in June 1993 and March 1994, which were normal. However, the Veteran's May 1994 medical evaluation board report of medical examination shows a 20 decibel (dB) decline in hearing in the left ear at 6000 Hz. Specifically, the examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 6000 Right 5 0 0 0 0 5 Left 5 0 0 10 10 20 The Veteran denied ear, nose, or throat trouble and hearing loss on the corresponding report of medical history, and his hearing was noted to be normal on a July 1994 medical evaluation board narrative summary. Thus, there is no showing of any hearing loss for VA purposes in the Veteran's STRs. See November 2013 STR Medical. A review of the post-service treatment records shows that the Veteran endorsed intermittent hearing loss, which was worse in his right ear, bilateral "stabbing" pain in his ears that occurred infrequently, and aural fullness associated with chronic allergies in October 2012. To this end, he stated that he was exposed to noise while working on the flight line during service and endorsed occupational noise exposure while working for an aircraft engine rebuilding company. On audiological examination, the examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 35 40 40 40 45 Left 20 25 25 25 20 The examiner stated that the Veteran's word recognition ability was fair or good for the right ear and excellent for the left ear. However, the examiner also stated that the results indicated poor inter-test reliability due to poor tone average/speech reception threshold agreement. The assessment was mild to moderate sensorineural hearing loss in the Veteran's right ear. A November 2012 otolaryngology consultation shows that the Veteran's diagnosed asymmetric sensorineural hearing loss disability, right worse than left, could be due to an acoustic neuroma. The Veteran was initially afforded a VA examination in July 2013. The examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 25 25 30 25 35 Left 25 20 25 20 20 Speech recognition scores were 88 percent for the right ear and 96 percent for the left ear. The examiner further noted that both of the Veteran's ears showed normal acoustic immittances, abnormal ipsilateral acoustic reflexes, and abnormal contralateral acoustic reflexes. The examiner further noted that the Veteran had post-service occupational noise exposure while he was working for an aircraft engine rebuilding company. Following the examination, the examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range of 500 Hz to 4000 Hz in his right ear but found that he had no left ear hearing loss disability. In the "evidence review" section of the examination report, the examiner noted that a May 1994 audiogram showed normal hearing through 6000 Hz bilaterally with one 20 dB decline in hearing in the Veteran's left ear at 6000 Hz. However, the examiner also reported that no other hearing threshold shifts were shown in the Veteran's STRs. After performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's right ear hearing loss disability was caused by or a result of an event in service. In support of her opinion, the examiner noted that no significant declines in hearing were noted in the Veteran's STRs. A November 2013 addendum to an otolaryngology outpatient note shows that the Veteran's pattern of audiogram appeared to be consistent with noise-induced hearing loss. The Veteran was also afforded a VA examination in February 2020. The examiner noted the following audiometric testing results: HERTZ 500 1000 2000 3000 4000 Right 20 25 25 20 40 Left 25 25 20 25 25 Speech recognition scores were 88 percent for the right ear and 96 percent for the left ear. The examiner further noted that both of the Veteran's ears showed abnormal acoustic immittances, abnormal ipsilateral acoustic reflexes, and abnormal contralateral acoustic reflexes. During the examination, the Veteran reported that he worked as a helicopter repairman and wore hearing protection when available during service. He also stated that he was exposed to occupational noise post-service while he was working for an aircraft engine rebuilding company; but indicated that he was not working at the time of the examination. Following the examination, the examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range of 500 Hz to 4000 Hz in his right ear but found that he did not have a left ear hearing loss disability. In the "evidence comments" section of the examination report, the examiner noted that the Veteran's DD Form 214 showed that his MOS was helicopter repairer, which had a high probability for hazardous noise exposure and that his STRs included a May 1994 audiogram, which showed normal hearing through 6000 Hz bilaterally, with one 20 dB decline in hearing noted in the Veteran's left ear at 6000 Hz. However, the examiner indicated that no other threshold shifts appeared in the Veteran's other in-service audiograms. To this end, the examiner reported that the Veteran's hearing was normal in the threshold range through 6000 Hz on his August 1992 enlistment report of medical examination audiogram and on audiograms conducted in June 1993 and May 1994. After performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's right ear hearing loss disability was caused by or a result of an event in service. In support of her opinion, the examiner noted that there was no evidence of hearing loss or declines in hearing in the Veteran's STRs, and as a result, opined that the Veteran's right ear hearing loss disability developed after he was discharged from active duty service. However, the examiner also stated that she was unable to determine the exact cause of the Veteran's mild, noise notched right ear hearing loss at 4000 Hz. See February 2020 C&P examination. After a review of the evidence of record, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted. The Board finds that the Veteran does not have a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385. In this regard, all audiometric testing results recorded during the period on appeal, to include audiometric testing conducted during the July 2013 and February 2020 VA examinations, show that the Veteran does not have a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385. Accordingly, the Board finds that the Veteran does not have a left ear hearing loss disability in accordance with VA standards, and as such, the first element of service connection has not been met with regard to the Veteran's claimed left ear hearing loss disability. The Veteran does have a diagnosis for a right ear hearing loss disability for VA purposes. See January 2020 CAPRI; February 2020 C&P examination. Therefore, the remaining question is whether the Veteran's diagnosed right ear hearing loss is etiologically related to his active duty service. In this regard, after a review of the evidence of record, the Board finds the February 2020 VA examination report to be the most probative evidence of record. To this end, after performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's right ear hearing loss disability was caused by or a result of an event in service. The examiner considered the evidence of record including the Veteran's lay statements as to in-service noise exposure and noted that his MOS as a helicopter repairer had a high probability for hazardous noise exposure. In addition, the examiner acknowledged that the Veteran's STRs included a May 1994 audiogram, which showed normal hearing through 6000 Hz bilaterally, with one 20 dB decline in hearing noted in the Veteran's left ear at 6000 Hz but found that no other threshold shifts appeared in the Veteran's other in-service audiograms. As such, the examiner opined that the Veteran's right ear hearing loss disability developed after he was discharged from active duty service. See February 2020 C&P examination. Thus, the Board finds that the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided an adequate supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the Veteran's assertion that he did not receive a "hearing check" when he was discharged from active duty service. See December 2016 VA Form 646 Statement of Accredited Representative in Appealed Case. In this regard, the Board notes that the Veteran's STRs show that he underwent an audiogram in connection with his May 1994 medical evaluation board report of medical examination, approximately five months before he was discharged from active duty service, and the Veteran's hearing was found to be normal on the July 1994 medical evaluation board narrative summary. See November 2013 STR Medical. However, the Board notes that the Veteran has not alleged, and the evidence does not show, that his hearing loss manifested between his May 1994 audiogram and October 1994 discharge. Rather, as noted above, the Veteran initially reported hearing loss in October 2012, approximately 20 years after his separation from service. Thus, even assuming without deciding that the Veteran did not undergo audiometric testing when he was discharged from active duty service, the evidence is still insufficient to conclude that his current right ear hearing loss is related to service. The Board further recognizes the Veteran's assertion that his claimed bilateral hearing loss disability is related to his in-service noise exposure. See December 2013 NOD. While a Veteran can competently report the onset and continuity of hearing loss symptoms, an actual diagnosis of sensorineural hearing loss requires objective testing to determine whether it is severe enough to be considered a disability for VA compensation purposes. Moreover, although the Veteran's MOS had a high probability for noise exposure, auditory damage and hearing loss are not conceded based on noise alone. Rather, hearing loss can have many causes, and the Veteran is not competent to opine as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Therefore, the Board concludes that any lay assertions by the Veteran in the present case are outweighed by the medical evidence of record, including the February 2020 VA opinion. As stated above, the examiner has training, knowledge, and expertise on which she relied to form her opinion and she provided a persuasive rationale. Importantly, there is no competent medical evidence to the contrary. Thus, the Board finds that the third Shedden requirements has not been met. Although the Veteran is entitled to the benefit-of-the-doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.