Citation Nr: 22014094 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 14-31 056 DATE: March 11, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period, continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision. A Board hearing was held in September 2017, and a transcript is of record. In February 2018, the Board remanded this issue for additional development. In April 2021, the Board denied the Veteran's claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed the Board's April 2021 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2021, the Court granted a Joint Motion for Remand (JMR), vacating the Board's April 2021 decision and remanding the issue of entitlement to service connection for bilateral hearing loss. The JMR represents agreement between the parties that the Board erred by not providing an adequate statement of reasons or bases to address the Veteran's September 2017 Board hearing testimony that he first noticed problems with his hearing immediately after service. Consistent with the terms of the November 2021 JMR and Court's Order, the Veteran's claim of entitlement to service connection for bilateral hearing loss, is readjudicated as set forth below. See Joint Motion for Remand dated November 8, 2021. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). For certain enumerated chronic diseases, such as sensorineural hearing loss, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b). For VA purposes, there are three ways in which an audiological examination can show that hearing loss is disabling: 1) "when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater"; or 2) "when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater"; or 3) "when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385 (2017). "Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 15860 (1993) (setting out the requirements for establishing service connection for hearing loss). Here, the Veteran seeks service connection for bilateral hearing loss, contending that it is the result of in-service exposure to hazardous noise. During his Board hearing, he explained that during service he was a plane captain, which involved being on the deck of the aircraft carrier "all the time." He was responsible for checking the planes' hydraulic systems, fluids, and running the pilot through checks on the aircraft to prepare for takeoff. He indicated that the noise level was like in the movie "Top Gun" all the time. He stated that he was not a radio repairman. The Veteran further testified that he first noticed problems with his hearing "right away, right after service." Based upon the following, the Board concludes that, while the Veteran has bilateral hearing loss for VA purposes, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology, nor is it directly related to active duty service. 38 U.S.C. §§ 1101(3), 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). During a January 2013 VA examination, the Veteran was found to have bilateral sensorineural hearing loss. In pertinent part, for the right ear, the Veteran demonstrated pure tone thresholds of 40 decibels at 3000 and 4000 Hertz, and for the left ear, he demonstrated a pure tone threshold of 40 decibels at 3000 Hertz. See VA Examination, received 1/23/2013. The Board finds that the Veteran has a bilateral hearing loss disability for VA purposes, and accordingly, the first Shedden element is met. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was Aviation Structural Mechanic Hydraulic F-8. It is considered highly probable that the Veteran's MOS would have exposed him to hazardous noise during service. Consequently, the second Shedden element is met. The Veteran's claim, therefore, depends upon whether there is a nexus between his current disability and active duty service. Audiometry testing at enlistment in September 1972 revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 25 15 LEFT 20 5 5 15 10 See STR; received 8/25/2014. Audiometry testing at separation in July 1975 revealed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 30 25 LEFT 15 15 15 25 15 The Veteran's attorney has contended that the audiograms obtained during the Veteran's entrance and exit examinations from service revealed "a worsening at the 3,000 and 4,000 decibel levels." See Hearing Transcript, p. 5. In its February 2018 remand, the Board found a January 2013 negative VA medical opinion to be inadequate because it failed to provide a well-articulated rationale in support of the conclusion. After examination in June 2018, an examining clinician opined that it was less likely than not that the Veteran's bilateral hearing loss was due to his military service. See C&P Exam, received 6/18/2018. The clinician noted that the Veteran's hearing thresholds were normal at both entrance and separation from service such that there was no evidence of hearing loss occurring during military service. It was noted that the Veteran reported that he noticed reduced hearing acuity about 15 years before, or approximately in 2003. It was emphasized that this was 28 years after in-service noise exposure. It was explained that current research did not support the notion of delayed onset of noise-induced hearing loss. It was explained that "the landmark report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006)" from 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." It was stated that this report "remains the definitive consensus in this matter." In other words, if the Veteran's hearing loss was related to in-service noise exposure, it would have been evident sooner than 28 years after active duty. The clinician addressed the Veteran's shift in pure tone threshold at 3000 Hertz in the right ear between entrance and separation from service. It was stated that 30 decibels at separation "alone is considered a mild hearing threshold." It was noted, however, that at enlistment the threshold was 25 decibels, which resulted ina shift of only 5 decibels. It was stated that "[t]his is NOT considered clinically significant nor is it considered a significant threshold shift. This is within normal test re-test variation." The clinician further noted that after service the Veteran worked "in auto mechanic shops for 37 years without hearing protection which is extremely noisy." So, it was concluded, "[d]ue to the lack of hearing loss at separation from military service, the veteran's report of hearing loss onset as 15 years ago, and veteran's noisy 37 year occupational history in an auto mechanic shop it is LESS likely than not that veteran's current hearing loss is due to military service 43 years ago." The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286-88 ((Fed. Cir. 2009). Although the Veteran is competent to report experiencing symptoms of hearing loss since service and consistently since service, the Board finds the reports of continuity of symptomatology are not credible. The Veteran's reports are internally inconsistent with his reports in contemporaneous treatment records. Notably, during the September 2017 Board hearing, he testified that he first noticed problems with his hearing immediately after service. However, at the June 2018 VA examination, he reported having first noticed reduced hearing acuity 15 years before (outside of the presumptive period.) Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). His report of onset in service is further undermined by the lack of records showing any complaints of hearing loss for nearly three decades following service discharge. As the evidence is against finding that the Veteran's bilateral hearing loss manifested within the applicable presumptive period or that there has been continuity of symptomatology, the third Shedden element is not met on a presumptive basis, and the claim fails. As to a direct basis, the Veteran contends that his hearing loss is related to in-service exposure to hazardous noise while serving as an aviation mechanic. Because the Veteran is not competent to provide an opinion as to the etiology of his bilateral hearing loss, the Board gives more probative weight to the competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds the June 2018 VA medical opinion highly probative as it clearly explains why the Veteran's bilateral hearing loss was less likely as not related to active duty service and more likely due to 37 years of occupational noise exposure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion."); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). It was explained how the Veteran's presentation of reduced hearing acuity was inconsistent with the findings presented in the report of the "definitive consensus" on how hearing loss related to noise exposure presents clinically. The clinician emphasized that current research showed that hearing loss related to exposure to noise would occur immediately thereafter, not decades later. It was explained that there was no clinically significant threshold shifts between the Veteran's entrance into and separation from service. Significantly, the Veteran worked in the environment of auto mechanic shops for 37 years after service, which is known as an "extremely noisy" environment. The Veteran has not presented any contrary scientific evidence in support of a relationship between his current hearing loss disability and his in-service exposure to hazardous noise. Consequently, as there is not a medical basis to support a nexus between service and the Veteran's bilateral hearing loss, the third Shedden element is not met on a direct basis, and the claim fails. Based upon the foregoing, as the competent and credible evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38C.F.R. §§3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Griffith, Shari 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.