Citation Nr: 22014791 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 18-46 883 DATE: March 15, 2022 ORDER Service connection for bilateral hearing loss, to include as secondary to service-connected Type II diabetes mellitus, is denied. FINDING OF FACT The Veteran has a current bilateral hearing loss disability for VA purposes; however, the evidence is persuasively against a finding that it is etiologically related to his service, to include as secondary to his service-connected diabetes. CONCLUSION OF LAW The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3. 310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from April 1968 to May 1971. He also had service in the U.S. Naval Reserve. His decorations include the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In January 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in November 2021, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its remand, the Board directed the AOJ to obtain updated VA treatment records and to procure an addendum medical opinion regarding whether the Veteran's bilateral hearing loss was secondary to his service-connected diabetes. In December 2021, the AOJ obtained updated VA treatment records and an addendum VA medical opinion. The Board finds that there has been at least substantial compliance with the November 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected Type II diabetes mellitus The Veteran contends that his hearing loss was caused by service, as due to noise exposure. Specifically, he stated in a June 2016 submission that he served aboard the U.S.S. Bonhomme Richard, that the continual hum of machinery aboard the ship and jet noises caused his hearing loss, and that hearing protection was not provided to the general crew. He also contended in a March 2020 submission that his hearing loss was secondary to his service-connected diabetes and cited to two medical articles in support of that contention. He asserted, essentially, that his diabetes affected the nerve endings in his ears and caused damage, which in turn caused his hearing loss. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, including sensorineural hearing loss, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As an initial matter, the Board notes that there is no material dispute that the Veteran has a current hearing loss disability for VA purposes, as evidenced by a July 2016 VA examination. The first element of service connection as to the presence of a current disability has been established. The Veteran is also currently service-connected for diabetes. Service treatment records (STRs) show that the Veteran's hearing was tested, at least to some degree, in January 1966, February 1967, September 1967, January 1969, and April 1971. However, the only STR which contains audiometric data that is expressed by puretone thresholds, in decibels, is the Veteran's April 1971 separation examination. Military personnel records also confirm that he served aboard the U.S.S. Bonhomme Richard. The Veteran was first afforded a VA examination in connection with his claim in July 2016. The examiner offered a negative nexus opinion, reasoning that a STR from September 1967 showed a score of 15/15 on the whispered voice test, as did a subsequent STR. The examiner then noted that the Veteran's April 1971 separation examination showed normal hearing at all frequencies. The Veteran was afforded a second VA examination in connection with his claim in in December 2019. The December 2019 VA examiner also offered a negative nexus opinion. She noted that no entrance audiogram was found, but that the Veteran's April 1971 exit audiogram showed normal hearing sensitivity, and that his hearing was not evaluated in a July 1972 reserve service STR. She further noted that she was unable to find documentation which stated the Veteran's military occupational specialty (MOS), but that one document said sales officer, where the Veteran reported that his MOS was in the supply office. The examiner stated that she was unsure of the probability of hazardous military noise exposure but noted the Veteran's report that he was exposed to loud noise when on aircraft carriers, being around the AC/HVAC/steam systems, being on the flight lines, that his state room was right below the flight deck, that he did not have hearing protection, and that his hearing loss began in the late 1970s or early 1980s. The examiner stated that this was after discharge and reasoned that due to the normal hearing on his exit audiogram and when he started to notice hearing loss, it was less likely than not that his hearing loss was due to hazardous military noise exposure. Because neither the July 2016 nor the December 2019 VA examiners considered the theory of secondary service connection, the Board directed the AOJ to obtain an addendum VA opinion as to that theory in its November 2021 remand. It instructed the examiner specifically to address the two medical articles to which the Veteran cited in his March 2020 submission (both of which indicated that there might be a link between diabetes and hearing loss), and to address his contention that his diabetes caused damage to the nerve endings in his ears, which in turn caused his hearing loss. In December 2021, the AOJ obtained an addendum opinion as to secondary to service connection. The examiner offered a negative nexus opinion as to the causation prong of secondary service connection, reasoning that the Veteran had downward sloping hearing loss, and that if diabetes were the cause of his hearing loss it would lead to a flat type of hearing loss. He opined that as the Veteran did not have a hearing loss pattern consistent with an etiology of diabetes, it was less likely than not that his hearing loss was a result of his service-connected diabetes. He also addressed the two articles to which the Veteran cited in his March 2020 submission, stating that they had been reviewed but that they had no bearing on the reason for the Veteran's hearing loss as they addressed a type of hearing loss that was inconsistent with the type of hearing loss that the Veteran was experiencing. The examiner also offered a negative nexus opinion as to the aggravation prong of secondary service connection. He first noted that he could determine a baseline level of hearing loss, which he identified as a 1972 audiogram which demonstrated normal hearing. He then addressed the medical articles to which the Veteran cited in his March 2020 submission, stating that they had been reviewed but that they had no bearing on the reason for the Veteran's hearing loss as they were inconsistent with the type of hearing loss the Veteran was experiencing. The examiner explained further that diabetes could affect small vessels, that this could led to damage to the vessels providing blood flow to the auditory nerve, and that the resulting ischemia would lead to a flat hearing loss pattern as all parts of the nerve were affected. He stated that in the present case, the Veteran had a down sloping hearing loss pattern, which meant that the apex of the cochlea was affected more than the base, noting that that was seen with age-related and noise-induced hearing loss, not diabetes. He opined that based on that reasoning, it was less likely than not that the Veteran's hearing loss was aggravated by his diabetes. In light of the foregoing, and considering all of the evidence taken together, the Board finds that the evidence is persuasively against the Veteran's claim. The July 2016 and December 2019 VA examiners both offered negative nexus opinions as to direct service connection. Their opinions were based on the fact that records showed that the Veteran's hearing was normal at both enlistment and separation from active duty; a review of the Veteran's record, including his reports; and the medical record, with a thorough rationale provided. The December 2019 VA examiner also specifically considered the Veteran's contentions with regard to in-service noise exposure from machinery, jet noises from being on the flight line, that his state room was right below the flight deck, and that he did not have hearing protection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The December 2021 VA examiner's opinions with regard to secondary service connection were based on the same facts, as well as the medical literature of record, with a thorough rationale provided. He also specifically considered and addressed the relevant evidence of record. Id. As such, the VA examiners' opinions are entitled to significant probative weight. Significantly, there are no contrary medical opinions of record. The Board has considered the Veteran's statement in his March 2020 submission to the effect that when he reported that the onset of his hearing loss was in the late 1970s at the December 2019 VA examination, it was a casual answer to an on-the-spot question. However, the Veteran's assertion notwithstanding, the fact remains that no hearing loss disability was shown in service or within a year of separation. The VA opinions of record are consistent with that objective evidence. In arriving at this conclusion, the Board acknowledges that the Veteran is competent to offer statements with respect to symptoms of diminished hearing, to include as to the onset of those symptoms. However, the diagnosis of a hearing loss "disability," as VA defines that term, is a medically complex matter requiring the administration and interpretation of audiometric test results, as is the issue of whether the Veteran's current hearing loss may be etiologically related to his service, to include as a result of in-service noise exposure and/or as secondary to his service-connected diabetes. Inasmuch as the Veteran is not shown to have the requisite medical knowledge, he is not competent to render a diagnosis, to determine the onset of a hearing loss disability, or to offer a competent opinion with respect to the etiology of his hearing loss. In any event, the Board affords more probative weight to the VA examiners' opinions in that regard. The Board has considered the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.