Citation Nr: 21042346 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 20-01 776 DATE: July 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether the Veteran's bilateral hearing loss had its onset during or is etiologically related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1961 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107. The Veteran testified before the undersigned Veterans Law Judge during a hearing in January 2021. A transcript of the hearing is associated with the claims file. In February 2021, the Board remanded this matter for an addendum medical opinion. The agency of original jurisdiction (AOJ) obtained a VA examination and medical opinion in May 2021. After reviewing the documents, the Board finds that they are substantially compliant with the prior remand directives. Therefore, the Board will proceed with a decision on the merits. Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for bilateral hearing loss The Board finds that the most probative evidence does not reach the level of equipoise in the claim of entitlement to service connection for bilateral hearing loss. Therefore, the claim may not be granted. The Veteran has a current diagnosis of bilateral hearing loss. See C&P Exam, May 2021. Thus, the questions for the Board are (1) whether there exists an in-service event, injury, or disease relevant to hearing loss and (2) whether there exists a nexus between any such in-service occurrence and present hearing loss. Service medical records show that the Veteran received a perfect score on the whispered voice test during his enlistment examination. He was found fit for military service, and no hearing defects were noted on the examination report. In October 1963, his separation audiogram showed hearing within normal limits, but the clinician did not test the thresholds at 3000 hertz. The Veteran stated that he was in "good health" and denied a history of ear, nose, or throat trouble. The record does not show any reports, treatment, symptoms, or diagnoses of hearing loss in service medical records. However, the Veteran contends that he was exposed to hazardous noise during military service and that his current hearing loss is a delayed-onset reaction to hazardous noise exposure. Specifically, he testified that his military occupation as a signal analyst involved listening to loud, high frequency radar transmissions through headphones. He denied exposure to hazardous noise in his post-military occupation or recreational activities. The Veteran submitted a medical opinion from V.M.F., Au.D., dated January 2021. V.M.F. stated that she was unable to review service medical records because the Veteran reported that he did not have them. She found, among other things, that a hearing impairment due to previous noise exposure during military service cannot be ruled out. She indicated that the Veteran would like to obtain his separation examination with audiometric testing information to determine the etiology of his hearing loss, but suggested that without this information, she was unable to provide a conclusive medical opinion as to the etiology of his hearing loss. The Board notes that no further opinion has been received from V.M.F., despite the Veteran's receipt of his full claims file and service medical records in October 2020. The Veteran attended a VA examination in May 2021. The examiner, A.J., Au.D., reviewed the claims file and opined that it is less likely than not that the Veteran's hearing loss had its onset during or is related to military service, to include a delayed-onset reaction to hazardous noise exposure. As rationale, he indicated that "while the whisper test provides no quantifiable measure of hearing sensitivity, there is an allowable assumption that the Veteran was fit for duty at time of entrance into service, to include normal hearing. As also reported in the VA examination report in June 2018, the separation exam shows normal hearing sensitivity in both ears. In the absence of any measurable hearing loss at the time of separation, there is no indication the Veteran's military noise exposure caused a permanent noise injury resulting in hearing loss that developed during service." In response to the question of delayed-onset hearing loss, A.J. stated "while it seems reasonable and logical that the veteran's hearing loss would be etiologically related to his noise exposure experienced during active service, there is no current literature that provides scientific evidence that hearing loss has a delayed onset after noise exposure has been removed. Conversely, the scientific data available provides evidence in 'humans of the stability of the post-exposure hearing thresholds over an extended period of time.' Additionally, the scientific data available provides evidence that 'the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure' and that 'hearing thresholds always improve or remain stable as post-exposure time increases.'" He cited the 2006 Institute of Medicine (IOM) study titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus". A.J. further stated that "the objective measure of the veteran's hearing thresholds in the separation audiogram indicate that the veteran did not suffer noise related ear injury while in the service and that the reported subsequent onset and progression of hearing loss would then, of necessity, be related to other, new, non-military noise exposures and/or other possible etiologies unrelated to military noise exposure." Lastly, A.J. concluded that it is less likely than not that hearing loss is proximately due to, a result of, or aggravated by service-connected tinnitus. As rationale, he explained, in part, that "tinnitus is an auditory percept that arises at the level of the brain. While tinnitus perception can be severe in some cases and can cause significant distraction during efforts to hear and follow conversation, its presence does not cause or produce cochlear damage resulting in hearing loss." The Veteran's representative submitted an appellate brief in June 2021. He asserted that "current medical research has established a relationship between acoustic traumas and hearing loss that is experienced yearseven decadeslater. The [2006] IOM study, on which VA examiners so often rely, offers no effective rebuttal to such research." However, the representative did not include citations to any research supporting delayed-onset hearing loss or indicating that it is at least as likely as not that delayed-onset hearing loss occurred in this Veteran's case. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise in the claim of service connection for bilateral hearing loss. In reaching this conclusion, the Board has considered the medical evidence. A.J. opined that it is less likely than not that the Veteran's hearing loss had its onset during or is etiologically related to military service, to include as a result of a delayed-onset reaction to hazardous noise exposure. As A.J. reviewed the claims file, and gave a thorough and reasoned opinion supported by citations to relevant scientific evidence, the Board finds his conclusions to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). V.M.F.'s opinion was reviewed. Initially, the Board observes that her opinion was speculative, and does not express the requisite level of certainty for VA nexus evidence. Bloom v. West, 12 Vet. App. 185, 187 (1999). Specifically, the fact that a relationship "cannot be ruled out" does not mean that a nexus is "at least as likely as not" under the applicable standard. 38 C.F.R. § 3.102. Moreover, she conceded that she had not reviewed the Veteran's service medical records and indicated that the absence of such records affected her conclusions. Accordingly, her findings are afforded lower probative weight. D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). The Veteran's lay statements have been considered. Nevertheless, the ability to link hearing loss to military service requires complex medical knowledge of the inner ear and neurological responses to acoustic stimuli that are beyond lay capacity. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Board affords higher probative weight to the competent medical evidence. The Board is aware of the holding in McCray v. Wilkie, 31 Vet. App. 243 (2019). In McCray, the United States Court of Appeals for Veterans Claims (Court) held that when a medical opinion relies in part on medical text evidence that contains qualifying or contradictory information, 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. Id. at 256. The Court pointed to the fact that the 2006 IOM study "indicated 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." Id. at 257. The Board concludes that A.J.'s citation to the 2006 IOM report does not diminish the probative weight of his opinion. This is because A.J. used the actual conclusions of the IOM study to support his findings that the evidence in the Veteran's case did not support delayed-onset hearing loss caused by military service. Although sufficient studies to exclude or establish delayed-onset hearing loss as a general phenomenon may not exist, it does not change the fact that A.J. found that the available evidence does not support delayed-onset hearing loss in this case. The Board observes that no competent medical evidence has indicated that there is nexus between the Veteran's hearing loss and a delayed-onset reaction to military service. As such, the Board finds that the most probative evidence does not reach the level of equipoise regarding the question of a nexus between hearing loss and military service in this Veteran's case. The Board is sincerely grateful for the Veteran's honorable military service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the claim of service connection for bilateral hearing loss, and, thus, the claim must be denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard is not applicable based on pure speculation or remote possibility). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.