Citation Nr: 22016167 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-50 851 DATE: March 21, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A hearing disability was not present during the Veteran's active service, sensorineural hearing loss is not shown to have been manifest to a compensable degree within one year of service separation, the most probative evidence establishes that the Veteran's current bilateral hearing loss disability is not related to his active service or any incident therein, including noise exposure, or caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 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 February 1971 to November 1972, and had a period of active duty for training (ACDUTRA) from May 1970 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for bilateral hearing loss. The Board most recently remanded this appeal in November 2021. A Supplemental Statement of the Case (SSOC) was issued in December 2021. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis and other organic diseases of the nervous system, such as sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for bilateral hearing loss. For the reasons that follow, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted. The Veteran asserts that his currently diagnosed bilateral hearing loss resulted from exposure to hazardous noise while in service. Alternatively, he contends that his bilateral hearing loss is secondary to his service-connected tinnitus. He asserts that he was exposed to loud noise while serving in the Navy as a cryptographic technician radioman (CTR). See Veteran's Lay Statement, January 2016. The Veteran explained that he was a CTR at a station nicknamed "the zoo," where there were multiple messages coming in at the same time with static and that he had to record the messages that he could hear the best. Id. Regarding exposure to hazardous noise, the Veteran presented evidence showing that his military occupational specialty in radio communications, as reflected on his DD Form 214, exposed him to hazardous noise in service. In addition, VA conceded his military noise exposure in a June 2020 Decision Review Officer decision, which granted the Veteran service connection for tinnitus due to in-service noise exposure. The Veteran asserts that he first noticed loss of hearing acuity in both ears while in service and has experienced the same symptoms from that time to present. Service treatment records are negative for pertinent complaints or observations. Whisper testing was performed in March 1969 as part of the U.S. Navy Reserve enlistment examination, which was 15/15 bilaterally. Pure tone threshold testing was not performed. On a January 1971 Report of Medical History, the Veteran reported that his health was "good to excellent." He denied having, or having had, hearing loss. He endorsed having, or having had, ear, nose, or throat trouble. It was noted that this was a reference to frequent earaches as a child. Physical examination of the Veteran was performed in February 1971. Whisper testing was again 15/15 bilaterally; and, again, pure tone threshold testing was not performed. The Veteran's hearing acuity was tested during his October 1972 separation examination. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 5 5 LEFT 0 0 0 5 0 In the Notes section, it states, "I certify that I have been informed of and understand the BUMED INSTRUCTION 6120.6D," with the Veteran's signature underneath. Thus, the Veteran indicated he was informed he had been found to be fit, and if he felt he had any serious medical problems, he should so inform the examining physician. See Real v. U.S., 906 F.2d 1557, 1559 (Fed. Cir. 1990) (describing the meaning of BUMED INST. 6120). The Veteran was found to be qualified for release from active duty and to perform all the duties of his rate at sea and on foreign shore. On the accompanying October 1972 Report of Medical History, the Veteran reported that his health was good and endorsed having, or having had, ear, nose, or throat trouble. It was noted that such was a reference to occasional sore throat as a child and a nasal bone fracture. However, the Veteran specifically denied, having, or having had, hearing loss. Received in June 2014 were the results of a March 2013 private audiologic evaluation. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 25 55 90 LEFT 10 15 25 55 70 The audiologist noted that there was long-standing bilateral hearing loss and right ear tinnitus. There was also a positive history of noise exposure, both refinery and military. No etiological opinion was offered. The January 2015 VA audiological examination report recorded pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 55 85 LEFT 15 15 30 55 65 The examiner diagnosed the Veteran with bilateral sensorineural hearing loss, but gave a negative etiological opinion on the basis that, given that the Veteran's service exit examination indicated normal hearing in both ears, any hearing loss that has occurred since his military service is not related to noise in the military as damage stops when the person is removed from the noise. She remarked that the Veteran's hearing loss impacted ordinary conditions of daily life, including the ability to work, as he has difficulty hearing people with low voices and trouble hearing when a lot of people are talking. A new opinion was requested by the Board in November 2018 in order to address the July 1990 field study submitted by the Veteran, which concluded that manual Morse code operators faced a significant probability of exposure to hazardous noise levels. In September 2019, a VA audiologist opined that it is less likely as not that the current hearing loss in the Veteran's ears is related to military noise exposure. She noted that, per her records review, the Veteran separated from service with normal hearing in both ears. She explained that military noise effects would have been evident at separation. She further noted that the current hearing loss occurred after separation from military service and is at least as likely as not multifactorial, encompassing aging, medical issues, idiopathic factors, or recreational/occupational noise exposure, and is less likely as not due to military hazardous noise exposure. The examiner noted that the Veteran's records are silent for hearing examinations between 1972 and 2013. She also stated that, should the Veteran present hearing examinations between this time, evidencing hearing loss near his separation, she would re-evaluate her medical opinion. The Board notes that the September 2019 examiner gave a positive nexus opinion for the Veteran's tinnitus, concluding that, due to in-service noise exposure without hearing protection, it is at least as likely as not that the Veteran's reported tinnitus is related to military noise exposure. She further concluded that, as tinnitus is known to be a symptom associated with hearing loss, the Veteran's tinnitus is also related to his current hearing loss. In June 2021, the Board, inter alia, determined that this opinion was inadequate because it focused on the absence of in-service evidence of hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89(1992); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the absence of in-service evidence of a hearing disability is not always fatal to a service connection claim). In July 2021, the VA examiner who provided the September 2019 medical opinion offered an addendum where she reiterated that it is less likely as not that the Veteran's current hearing loss in either ear is related to military noise exposure. In addition to restating her September 2019 opinion, she referred to medical literature which indicates that long-term exposure to low-level noise damages the cochlea metabolically rather than mechanically, and that outer hair cells immediately start dying during the initial acoustic insult and continue to do so for at least 30 days after the event. She explained that, per medical literature, military noise exposure does not take 30+ years to appear. She further explained that the Veteran's three years of service in the Navy amounts to a short period of noise exposure, which would not cause the current bilateral hearing loss, 40+ years later. In November 2021, the Board again remanded the matter for a new medical opinion. In December 2021, a VA examiner opined that the Veteran's bilateral hearing loss is not related to in-service noise exposure, explaining that a study indicated that there is insufficient evidence to conclude that hearing loss due to noise will progress once the noise exposure is discontinued. He further noted that, given the Veteran's hearing was normal at separation and there are no documented complaints until 40 years after separation, and the Veteran has a history of civilian noise exposure, it is less likely than not that the Veteran's hearing loss is the result of noise exposure on active duty. The examiner also referred to documented notes showing that the Veteran reported he was exposed to noise as a civilian while working in a refinery and from hunting. Regarding service connection on a secondary basis, the December 2021 contracted examiner opined that it was less likely than not that the Veteran's hearing loss was caused or aggravated by service-connected tinnitus because tinnitus is not a disease in and of itself. Rather, it is a symptom of an underlying condition. Given that it is a symptom, it cannot cause or worsen hearing. Tinnitus is often a symptom of hearing loss but does not cause or worsen hearing loss. In the January 2022 informal hearing presentation, the appellant's representative contended that the December 2021 medical opinion was inadequate because it relied heavily on a 2005 study of the Institute of Medicine (IOM) regarding Military Noise Exposure, without addressing apparently qualifying or contradictory statements contained therein. McCray v. Wilkie, 31 Vet. App. 243, 256 (2019). Indeed, "[i]f the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions," or if such an issue is expressly or reasonably raised, the matter must be addressed. Id. at 257. Applying the facts to the criteria set forth above, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted on any basis. The Veteran has neither identified nor submitted any post-service treatment records to demonstrate hearing loss disability at any time prior to March 2013. Although he has described longstanding decreased hearing acuity, there is no competent medical evidence that bilateral sensorineural hearing loss manifested to a compensable degree within one year of his discharge from active service. 38 C.F.R. § 3.307, 3.309. The Board notes that the absence of evidence of a hearing disability during service is not in and of itself fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, evidence of current hearing loss 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 (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, however, the overwhelming competent evidence of record is against a finding that the Veteran's current hearing loss disability is related to active service. In that regard, the Board assigns great probative weight to the December 2021 contracted medical opinion, as the audiologist reviewed the Veteran's claims file in its entirety and considered the Veteran's reported history. After considering the record, the audiologist concluded that the Veteran's hearing loss was not causally related to service. The audiologist provided a clear rationale, citing the nature of the Veteran's current hearing pathology and current knowledge about the relationship between acoustic trauma and hearing loss in the determination. The Board assigns less probative weight to the January 2015, September 2019, and July 2021 opinions for the reasons delineated above, and in the Board's prior remands. However, the Board notes that all of the conclusions are consistent with the December 2021 medical opinion. In addition, the Board assigns less probative weight to the Veteran's contentions indicating that his hearing loss was caused by active duty. Although the Veteran is competent to describe symptoms, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have had medical training or skills. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board assigns more probative weight to the findings of the December 2021 contracted examiner, given the audiologist's clinical expertise and the rationale provided. In reaching its determination, the Board has considered the decision of the United States Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243 (2019). In McCray, the Court discussed the Institute of Medicine (IOM) report cited by the December 2021 contracted examiner, noting that it had concluded, in part, that based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The IOM report also indicated that there was 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. The Court then held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, 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 257. The Board has considered the contentions of the Veteran's representative and acknowledges that the December 2021 contracted examiner relied, in part, on the 2005 IOM report as a basis for providing a negative opinion, and the 2005 IOM report has qualifying statements, as noted by McCray. The Board finds this does not render the entire opinion inadequate or diminish its probative value. The Board notes that the IOM report acknowledged that there was insufficient evidence to address the question of delayed onset noise-induced hearing loss. Nevertheless, the IOM report's own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (unlikely). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The Board finds that the use of the word extremely also lends much support to finding that the report retains its probative value and is not inadequate. Moreover, the McCray court referenced a medical text's qualifying or contradictory aspects as one factor on a non-exhaustive list that is relevant to the Board's evaluation of the probative value and adequacy of a medical opinion. McCray, 31 Vet. App. 243. Here, the December 2021 contracted examiner only partially relied on the findings of the 2005 IOM report and discussed other factors that led to the ultimate conclusion. Thus, the December 2021 contracted examiner did not rely entirely on the IOM report in forming the conclusion but, instead, considered all relevant facts in this case. The December 2021 contracted examiner's opinion and rationale are the most probative evidence of record on the etiology of the Veteran's bilateral hearing loss. Reading the examiner's opinion as a whole, the examiner relied on accurate facts, expressly considered the Veteran's in-service noise exposure, described the Veteran's disability in sufficient detail, related medical literature to the Veteran's specific facts, and provided a reasoned medical explanation that connected the examiner's conclusion to supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Additionally, there is no "reasons and bases" requirement imposed upon examiners by law, and rather a medical opinion is "adequate" when it rests on correct facts and reasoned medical judgment. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); see Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding examination reports adequate when "they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). With respect to secondary service connection, the Board affords great probative weight to the December 2021 contracted examiner's opinion because it is based on review of the relevant evidence of record and medical knowledge, and is accompanied by a detailed, well-reasoned rationale. There is no competent evidence to the contrary. While the Veteran is certainly competent to report that his tinnitus may interfere with his ability to discern other sounds, he is not competent to determine the cause of his symptoms because it would involve medical inquiry into biological processes, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran has not produced a medical opinion to contradict the conclusions set forth in the January 2015, September 2019, July 2021, or December 2021 medical opinions. Thus, these medical opinions, particularly the highly probative December 2021 opinion, stand unchallenged as competent medical evidence on the crucial question of medical nexus. Accordingly, the Board finds that the competent medical evidence cumulatively demonstrating the absence of nexus between the currently diagnosed bilateral hearing loss and the Veteran's military service and/or service-connected disabilities outweighs the medical evidence suggestive of a nexus. The Veteran and his representative have had multiple opportunities to submit a medical opinion in support of the claim, but apparently chose not to do so. Although VA has a duty to assist the appellant in the development of his claim, such duty is not "a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Rather, the appellant also has an obligation to assist in the adjudication of his claim. "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 195. The Board has carefully considered the contentions of the Veteran that he suffers bilateral hearing loss, which was incurred during his military service and/or as secondary to a service-connected disability. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's lay theories regarding the etiology of his bilateral hearing loss are contradicted by the conclusion of the December 2021 examiner who specifically considered the Veteran's lay statements in rendering his negative opinions. The Board finds the specific, reasoned opinion of the trained health care provider who conducted provided the December 2021 medical opinion to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Crucially, however, the Veteran's contentions in support of service connection, including continuing post-service hearing loss symptomatology are contradicted by the findings set forth in the December 2021 medical opinion, which specifically considered the lay assertions and any such inferences contained in the record in the negative nexus opinion. As the evidence is not in approximate balance and is persuasively against the appellant's contentions, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). R. Behlen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.