Citation Nr: 22015289 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-20 007 DATE: March 17, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss disability did not manifest to a compensable degree within the applicable presumptive period of one year after service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from January 1971 to January 1975, and from October 1975 to November 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2020. A transcript of this hearing has been associated with the claims file. As a preliminary matter, the Board notes that this claim was previously before the Board in April 2020, May 2021, and October 2021, at which times it was remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In consideration of the appeal, the Board is satisfied that there has been substantial compliance with the October 2021 remand directives and will proceed with appellate review. 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that his current bilateral hearing loss is related to his active-duty military service. Specifically, the Veteran asserts that his current hearing loss is related to noise exposure he experienced during active duty while serving as a helicopter gunner and combat engineer. Alternatively, the Veteran's representative has argued that his bilateral hearing loss is a residual of a head trauma that the Veteran suffered while on active-duty service. See e.g., March 2021 appellate brief. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R.§ 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Specific to claims for service connection, hearing loss is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, the Veteran attended a VA examination in November 2020 and his hearing test results showed that he had bilateral hearing loss for VA purposes. As a result, the first element of service connection, a current disability for VA purposes, has been met in this case. See Shedden, 381 F.3d at 1167. The Veteran's service treatment records are negative for complaints or treatment for hearing loss. Significantly, the Veteran's January 1971 enlistment examination and July 1980 separation examination indicate that the Veteran's hearing was within normal limits. Regardless, the controlling regulations do not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The available military personnel records confirm that the Veteran's military occupational specialty (MOS) was a Combat Engineer in the Marine Corps. See Form DD-214. The VA has conceded that hazardous noise exposure would have occurred because of this MOS. Further, the Veteran has submitted statements relating his experience of exposure to various loud noises during service including helicopter noise, weapons fire, explosives, and heavy machinery. As a result, the Board finds his assertion that he had noise exposure and/or acoustic trauma during service credible and the in-service element is established. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The final, and in this case determinative, element of service connection is whether a nexus exists, linking the Veteran's current bilateral hearing loss to his in-service noise exposure. The Board finds the evidence weighs strongly against a finding that a nexus exists between the Veteran's bilateral hearing loss and his military service. Specifically, a VA opinion addressing the etiology of the Veteran's bilateral hearing loss was obtained in December 2021, following several remands by the Board for further development of inadequate medical opinions. The December 2021 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for her opinion, the VA examiner stated "Review of pertinent case files, including DD 214, Remand Letter and electronic records, shows the Veteran served from 01/12/1971-01/11/1975, 10/31/1975-07/21/1977 and 07/22/1977-11/28/1980. His MOS was Combat Engineer, which has a high probability of hazardous noise exposure. The Veteran obtained the following: National Defense Service Medal, Rifle Sharpshooter Badge, Pistol Sharpshooter Badge. Veteran reports noise exposure during military service from working on aircraft, aircraft on the flight line, five-ton trucks, generators, air compressors, power tools and weapons qualifications. The first enlistment hearing test (January 1971) and the last separation hearing test (July 1980) showed normal pure tone thresholds at 500 through 6,000 HZ, with no significant threshold shift. Other hearing tests during service (December 1974, October 1975, July 1977) showed similar normal pure tone thresholds. There is an October 1990 hearing test (ten years post-separation) showing severe hearing loss at 3-8 kHZ, but the March 1991 follow up medical report states there was significant improvement to "mild sensorineural hearing loss in high frequencies" and excellent word recognition scores (WRS). The April 2015 audio evaluation from an outside audiologist showed mild to moderate hearing loss at 3-8 kHZ. The June 2016, November 2020, January 2021 and June 2021 C&P audiologic evaluations showed essentially stable, symmetric, normal pure tone thresholds, except for a mild to moderate drop at 2-8 kHZ in the left ear. Today's audiologic evaluation again shows a stable, mild-moderate hearing loss at 1-8 kHZ at 2-8 kHZ and excellent WRS... Today, the Veteran stated he has 'memory issues' due to three TIAs. Medical files also show he has a history of several medical issues, including heart disease, stroke, diabetes, neuropathy, benign essential hypertension, age-related macular degeneration, partial seizures. Today, responses to testing were consistently slower than typical and he required continued instruction to listen and respond to pure tone/SRT/WRS test stimuli. The examiner went on to state that there was no significant permanent hearing threshold shift beyond test variability from entrance to separation and no complaint or treatment for hearing decrease in STRs/separation until ten years post-military service on the 1990 hearing tests, which showed improvement over two hearing tests from severe hearing loss at 3-8 kHZ, to 'mild high frequency loss.' Temporary threshold shift is known to occur after acute noise exposure, impacted earwax, inner ear and middle ear pathology. The Veteran has experienced several potential sources of hearing loss since leaving active duty. The Veteran first filed for disability due to hearing loss in 2016, at which time he had worked 34 years as a long-haul semi-truck driver and today, he said he worked a total of 40 years as a truck driver. Semi-truck driving is a career that is known to have significant hazardous noise exposure, resulting in high-frequency hearing loss. The Veteran's current hearing loss may be due to presbycusis, which is 'the loss of hearing that gradually occurs in most individuals as they grow older. Hearing loss is a common disorder associated with aging. About 30-35 percent of adults age 65 and older have a hearing loss. It is estimated that 40-50 percent of people 75 and older have a hearing loss' (citing various medical articles regarding presbycusis and its contributors). The Veteran has hypertension. There is a significant association between hypertension and increase in the hearing threshold (citing an NIH study that found hypertension to be an accelerating factor of hearing loss due to aging)... The examiner went on to state that the Veteran has contended his hearing loss may be connected to head injury sustained in October 1972, however the March 1990 Rating Decision, which denied service connection for epilepsy due to the head injury, stated: 'Although it is shown that the veteran had minor abrasions and contusions to the head in October 1972 there was no evidence of internal head damage.' The available anatomical and physiologic evidence suggests that delayed post-exposure noise induced hearing loss is not likely. If hearing is normal on discharge AND there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure. There is no nexus between any current hearing loss and military service, regardless of the cause of the hearing loss. Therefore, the Veteran's hearing loss is less likely than not due to military noise exposure or head injury. It is more likely than not due to 40 years of post-separation occupational noise exposure as a long-haul semi-truck driver, as well as additional presbycusic and/or medical contributors." The probative value of a medical opinion is based on the medical expert's knowledge and skill in analyzing the data and the examiner's medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication on the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). The Board gives the December 2021 VA examiner's opinion great probative weight as the opinion was predicated on an extremely thorough and detailed review of pertinent records, including the Veteran's in-service medical records, his statements, and post-service medical treatment records, and provides the underlying reasons for the conclusion. Nieves-Rodriguez, 22 Vet. App. at 304. Here, the VA examiner provided a clear rationale as to why the Veteran's bilateral hearing loss was less likely than not related to service. The VA examiner acknowledged that the Veteran does have a hearing loss disability, and did have noise exposure during service; however, the VA examiner clearly explains that there is no objective medical evidence of a significant threshold shift in service which would indicate that the Veteran's current disability and military service are related, and that, companied with the fact that the Veteran had a long history of occupational noise exposure following service as well, indicates it his current hearing loss is less likely than not related to his military service. The Board has also considered the Veteran's lay opinion that his in-service noise exposure was related to his current bilateral hearing loss disability. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witnesses observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this case, the Board considers the potential relationship between the Veteran's hearing loss for VA purposes and its connection to service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, conclude that there is a connection between the two. Specifically, the question of causation of hearing loss disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of his bilateral hearing loss disability. Therefore, the Board finds that the Veteran's assertion that his in-service exposure to noise and his current bilateral hearing loss disability is related has less probative value. Additionally, as mentioned above, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, will be presumed to be related to service if it was noted as chronic in service; or if it manifested to a compensable degree within a presumptive period (usually one year) following separation from active duty; or if continuity of the same symptomatology has existed since service, with no intervening cause. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). In this case, the first documented complaints of hearing loss do not appear in the record until October 1990. Given that time frame, the Veteran indicated that he first noticed the onset of his hearing loss roughly a decade after discharge from active-duty service. However, the evidence of record reflects that an additional audiological evaluation in March 1991 reflected "significant improvement" in the Veteran's complaints of hearing loss. Furthermore, the Veteran also reported a history of post-service occupational noise exposure from his job as a long-haul trucker. Therefore, based on the evidence of record, there is no continuity of symptomatology since service or a diagnosis within one year of discharge from active-duty service to presume a relationship between the bilateral hearing loss disability and in-service noise exposure. The Board finds that service connection is not warranted for a bilateral hearing loss disability. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For these reasons, the claim for entitlement to service connection for bilateral hearing loss is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.