Citation Nr: 21057795 Decision Date: 09/16/21 Archive Date: 09/16/21 DOCKET NO. 17-22 517 DATE: September 16, 2021 ORDER Entitlement to service connection for gastric ulcers as secondary to service-connected lumbosacral strain and degenerative arthritis of the spine is granted. Entitlement to service connection for left ear hearing loss is denied FINDINGS OF FACT 1. The Veteran's diagnosed gastric ulcers are secondary to his service-connected lumbosacral strain and degenerative arthritis of the spine. 2. The Veteran's currently diagnosed left ear hearing loss is not shown to have had its onset during a period of active service, was not manifested to a compensable degree within one year following his separation from service and is not otherwise shown to be etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gastric ulcers are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to December 2009. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including hearing loss, may be presumed to have been incurred in service when 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(a). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for gastric ulcers With resolution of the doubt in favor of the Veteran, the Board finds that service connection for gastric ulcers is warranted. The Veteran filed a claim of service connection for gastric ulcers in February 2015. He was afforded a VA examination in April 2015. The examiner noted a February 2015 endoscopy that discovered four superficial small gastric mucosal ulcers. Biopsies found mild gastritis and mild duodenitis. The VA examiner opined that the Veteran's ulcers are more likely than not due to the medications he was taking to treat his back pain. A June 2015 rating decision denied service connection for gastric ulcers, finding that the condition was more likely due to medications for his back pain. Treatment records show that the Veteran's gastric ulcers resolved in May 2015. In a June 2020 rating decision, the Veteran was granted service connection for lumbosacral strain and degenerative arthritis of the spine, effective March 17, 2015. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's gastric ulcers are secondary to a service-connected disorder. The Board acknowledges that the record reflects that the Veteran's gastric ulcers had resolved. However, the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the April 2015 VA examination showed the presence of ulcers as due to his treatment for his back disorder. As the back disorder was later subject to service connection, the gastric ulcers are subject to secondary service connection. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted. 2. Entitlement to service connection for left ear hearing loss The Veteran seeks entitlement to service connection for his left ear hearing loss. He contends his hearing loss is a direct result of his military service as he was exposed to various hazardous military noise in the Army. In reviewing the record, the Board finds that the Veteran's service connection claim for left ear hearing loss is denied. 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service if there is sufficient evidence to demonstrate a relationship between a veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). As an initial matter, a December 2007 service treatment record (STR) noted the Veteran had steady noise exposure, and the Veteran's military occupational specialty was in aircraft maintenance. Therefore, the Board concedes acoustic trauma exposure in service. Second, the Veteran has a left ear hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385 as found by audiogram at the September 2016 and January 2020 VA examinations. Finally, with regard to causation, the Board finds that there is no evidence to support the Veteran's claim. The Veteran's service treatment records show 16 audiograms with normal hearing. The September 2016 VA examiner diagnosed bilateral sensorineural hearing loss and opined that it was less likely than not a result of service. He provided the following rationale: "No hearing loss noted in his military file. No significant threshold shift comparing the first and last military hearing evaluations in his file. In its landmark report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), the Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. Institute of Medicine stated, and I quote: '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. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.' This study remains the definitive consensus in this matter." The Veteran has provided consistent testimony of ongoing symptoms of left ear hearing loss that he first noticed in service. The Veteran first sought service-connection for bilateral hearing loss within one year of service and reported a gradual onset of hearing loss since service. See June 2010 VA hearing loss examination. VA treatment records from June 2016 also document a long history of hearing loss with a gradual onset. The Veteran's testimony has been consistent throughout the appeal and is supported by the objective evidence. The Board finds the testimony regarding onset and continuity of symptoms to be both competent and credible. Additionally, STRs show symptoms of left ear hearing loss in service. Specifically, in December 2007 the Veteran reported worsening hearing and audiometric testing results showed that at 3000 Hertz the puretone average threshold in the left ear was 25. While not a hearing loss disability for VA purposes, the STRs do show some degree of hearing impairment in the left ear in service. The Veteran was afforded a VA examination in February 2020. The VA examiner diagnosed hearing loss for VA compensation purposes but opined that it was less likely than not due to noise exposure in service. The examiner provided the following rationale: "His hearing sensitivity remained within normal limits throughout the period of his active duty and remained within normal limits for at least eight months after his service was complete. Therefore, it is less likely than not that the mild moderate hearing loss that he showed today is due to events in his military service. The audiometrics in his record included 16 separate audiograms []. One of these audiograms shows normal thresholds in both ears, but the date of both the reference audiogram and the "current" audiogram are missing due to an apparent error in the copying process. In August 1990 (page 3950 of the record), his hearing was normal in both ears. In 1991, his hearing was normal in both ears. This audiogram appears to be the one used as the reference audiogram in all succeeding tests. In 1993, his hearing was normal in both ears. In 1995, his hearing was normal in both ears. In 1996, his hearing was normal in both ears. In 1997, his hearing was normal in both ears. In 2000, his hearing was normal in both ears. In 2001, his hearing was normal i both ears. In 2003, his hearing was normal in both ears. In 2004, his hearing was normal in both ears. In 2005, his hearing was normal in both ears. In 2006, his hearing was normal in both ears. In 2007, his hearing was normal in both ears. Note that in the remand there is reference to an abnormal threshold in the left ear for the frequency of 3kHz. That threshold was 20dB, still considered by both clinical as well as VA standards, to be within normal. In 2008, his hearing was normal in both ears as tested by an audiologist associated with ENT Allergy Associates of South Carolina, a non-VA entity, and those results showed all thresholds in both ears to be 15dB or better with the exception of a threshold at 8kHz in the right ear which was 20dB. These results are considered to be within normal by both clinical standards as well as those of the VA. The threshold in the left ear that was mentioned in the Remand document had improved per these test results. In 2010, his hearing was again within normal limits as measured during a Compensation and Pension exam conducted through the VA at Gainesville Florida. (See page 5629). At this point he has been separated from the Air Force for eight months. In 2016, he was seen for another Compensation and Pension Examination at the St Louis VAMC. The results of that examination showed bilateral mild moderate sensorineural hearing loss for the frequencies beyond 4kHz in his right ear and for the frequencies beyond 3kHz in his left ear. That examiner, J.S., opined that the hearing loss documented at that 2016 testing was less likely than not due to events in military service because of the careful and conscientious monitoring of the veteran's thresholds over his years of service in the Air Force that routinely showed hearing sensitivity within normal while he was actively serving. In the questionnaires he completed in connection with the audiometrics performed as part of his hearing conservation program while he was in the Air Force, he repeated indicated that he was exposed or had a history of exposure to the noise of motorcycles, loud music, firearms, farm equipment, construction equipment, chain saws and power tools. If he continued to be exposed to these conditions, which did not relate to his military duties, once he separated from the Air Force, it is possible that they contributed to the hearing loss that he showed by 2006 and continues to show today. The audiometric threshold testing conducted in 2010 in Gainesville FL as part of a Compensation and Pension exam documented normal threshold sensitivity. His thresholds did not achieve criteria for hearing loss by either clinical standards or by standards established by the VA for disabling handicap. Upon review of the record, the Board finds that service connection is not warranted. Although the Veteran reported a continuity of symptomatology, including a claim of hearing loss upon discharge from service, neither the contemporaneous treatment records and audiograms, nor the opinions of the VA examiners support his claim. Although the Veteran is competent to report observable symptoms and credible in his statements, the etiology of hearing loss is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his hearing loss, especially in light of the VA audiologist's conclusions that his hearing loss was not the result of service or an onset of hearing loss in, or to a compensable degree, within a year of service. Therefore, there is no competent and convincing evidence that the Veteran's currently diagnosed left ear hearing loss began during a period of active service or is otherwise etiologically related to an in-service injury or disease, on either a direct basis or a presumptive basis. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). J. Komperda Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.