Citation Nr: 22016437 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 12-34 868 DATE: March 22, 2022 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran's left ear hearing loss is not etiologically related to service or caused or aggravated by his service-connected right ear disability. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (a), 3.310, 3.385 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1968 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in April 2016. A transcript is of record. The claims were remanded in July 2016 and May 2018. In April 2020, the Board denied the Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC). Consistent with a July 2021 joint motion for remand (JMR), the CAVC vacated and remanded the Board's decision to assist the Veteran in obtaining medical records and to obtain an adequate medical opinion. In August 2021, the Board remanded the matter to the AOJ for the above reasons, to include obtaining a medical opinion as to the possibility of delayed onset hearing loss and/or potential effect of left ear injury and ear infections in service. Consequently, during the pendency of the appeal, the Veteran has been awarded service connection for right ear hearing loss and tinnitus. Entitlement to service connection for left ear hearing loss. The Veteran contends that his left ear hearing loss disability is related to his service, to include as due to acoustic trauma. Alternatively, he contends that his left ear hearing loss is secondary to a service-connected right ear hearing disability. He asserts that his symptoms developed during service and have persisted or worsened since that time. See February 2022 Appellate Brief. As a preliminary matter, in an August 2021 Subsequent Development Letter, VA contacted the Veteran to obtain information regarding treatment received from any outstanding private medical treatment records, to include treatment for an ear condition from 1971 to 2005 and his most recent family doctor. The Veteran was asked to complete and return a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), so that the VA could obtain treatment records on his behalf. He was also notified that he may, alternatively, obtain and submit the records directly to VA. To date, VA has not received any additional private medical evidence nor the completed forms from the Veteran to assist him with developing his claim. The Board finds that VA has fulfilled its duty to assist the Veteran with obtaining his private treatment records. The Veteran is reminded that VA's duty to assist in the development of a claim is not a one-way street and claimants cannot passively wait for it in those circumstances where they may or should have information that is essential to establishing their claim. Wood v. Derwinski, 1 Vet. App. 190 (1991). Turning to the merits of the current claim, the Board notes that the Veteran is service-connected for right ear hearing loss, tinnitus, and acute otitis media of the right ear. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1131; 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or 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 Veteran's service treatment records (STRs) include his February 1968 enlistment examination, which indicated a normal clinical examination of the ears. Audiometric tests conducted during the enlistment examination showed the following pure tones: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 0 N/A 0 See February 1968 enlistment examination. The Veteran was provided another audiological evaluation April 1968 to qualify for flight duty/training. Audiometric tests revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 0 0 See April 1968 audiological evaluation. Audiometric tests conducted during the Veteran's July 1971 separation examination revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 10 N/A 10 See July 1971 separation examination. The Veteran underwent a VA audiological examination in June 2017. Speech discrimination tests conducted via Maryland CNC word list revealed speech recognition abilities of 100 percent in the left ear. Audiometric tests revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 LEFT 40 45 40 35 45 See June 2017 audiological examination. He underwent a VA audiological examination in February 2019, which showed Maryland CNC speech recognition abilities of 100 percent in the left ear. Audiometric tests revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 LEFT 45 45 45 35 35 See February 2019 audiological examination. November 2021 VA audiological examination showed Maryland CNC speech recognition abilities of 96 percent in the left ear. Audiometric tests revealed the following pure tones: HERTZ 500 1000 2000 3000 4000 LEFT 50 60 55 40 45 See November 2021 audiological examination. In November 2021, consistent with the Board remand, new medical opinions were obtained addressing the Veteran's left ear hearing loss. Regarding direct service connection, the examiner opined that it is less likely than not that the Veteran's left ear hearing loss is a result of or related to "ear infections" in service. The examiner stated that the Veteran's service treatment records indicate that his enlistment exam reported a history of "ear infection" in "early childhood." The examiner further stated that the Veteran complained of "infected ears" in August 1968 and a "sore right ear" in March 1970, and was diagnosed with "external Otitis," which is an infection of the external ear canal (EAC). Further, the examiner stated that on a separate March 1970 document, he was diagnosed with "ear infection." The examiner stated that the Veteran's July 1971 separation exam mentioned "left eardrum scared [SIC] & retracted." The examiner stated that the term "ear infection" is used interchangeably for otitis media, which is an infection in the middle ear cavity behind the eardrum, and otitis externa/external otitis, which is an infection in the external ear canal in front of the eardrum. Further, the examiner stated that only external otitis was specifically diagnosed in the service treatment records, which is defined as an infection of the cutis and subcutis of the external auditory canal, possibly involving the tympanic membrane and the pinna as well. The examiner stated that in February 2019, a Nurse Practitioner noted that the Veteran was returned to flying status quickly after treatment with antibiotic drops. While otitis externa can cause hearing loss, the examiner opined, such hearing loss is usually transitive in nature, resolving when the infection goes away. The examiner concluded that all of the records seem to indicate that the otitis externa diagnosed in 1970 was in the right ear and cannot be linked to his current left ear hearing loss. Regarding direct service connection, the examiner opined that it is less likely than not that the Veteran's left ear hearing loss is a result of military noise exposure. The examiner explained that although the Veteran's MOS was highly probable for hazardous noise exposure, his July 1971 separation exam was normal with no threshold shift as compared to his February 1968 enlistment exam. Also, the examiner stated, he had no left ear hearing loss to VA standards in June 2011, 40 years after his separation in October 1971. The examiner stated that although it is recognized that the audiogram is an imperfect measurement, it is accepted as the objective basis for determining noise injuries. The examiner further stated that although the review board has deemed the IOM inconclusive, the Noise and Military Service: Implications for Hearing Loss and Tinnitus (2006) does state, "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." (IOM, 47) The examiner stated that the report further notes that "the committee's understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." (IOM, 203) The examiner stated that several recent journal articles have explored the effect of noise exposure which results in temporary threshold shift in laboratory animals; they concluded that in cases where thresholds return to normal after noise-induced threshold shift, residual effects do persist within the cochlea. The examiner further stated that some of these effects include "irreversible neural degeneration" which can cause "difficulties with perceptual tasks in more difficult listening environments" (Lin, 615), "progressive underlying neuropathology that likely has profound long-term consequences on auditory processing" (Kujawa [2009], 14084), problems "hearing in noisy environment that characterize the aging auditory system," (Furman, 57) and increased vulnerability to aging of inner ear mechanisms (Kujawa [2006], 2115). The examiner reasoned that Kujawa and Liberman specifically questioned the conclusions of the IOM report noting that the lack of delayed threshold shifts after noise exposure "has been taken as evidence that delayed effects of noise do not occur." In fact, the examiner reasoned, the IOM, as stated above says "there was insufficient evidence 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 anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The examiner explained that the delayed effect to which IOM was referring was delayed hearing loss. Therefore, the examiner explained, the authors (Kujawa and Liberman) misquoted the IOM report in that the IOM did look at animal studies and discussed Mills et al. (1997) at length since it addressed hearing sensitivity in exposed and non-exposed animals and found no difference over time. That said, the examiner reasoned, in the Veteran's case, there is no evidence that he experienced temporary threshold shift during military service as his thresholds throughout his military service were consistently normal with no fluctuations. Thus, the examiner concluded, even if researchers such as Kujawa and Liberman are correct and delayed effects can be seen in cases where temporary threshold shift occurred, it does not apply to the Veteran because there were no threshold shifts during military service, temporary or otherwise. The examiner also concluded that there is no evidence of continuity of care for hearing loss in the 40 years between his separation in October 1971 and June 2011 audiologist visit. The examiner explained that at the Veteran's age of 72, presbycusis is a significant factor contributing to his hearing loss. Regarding secondary service connection, the examiner opined that it is less likely than not that the Veteran's left ear hearing loss is proximately due to or aggravated by his service-connected condition of right ear acute otitis media. The examiner stated that the Veteran's July 1971 separation exam mentioned "left eardrum scared [SIC] & retracted." The examiner further stated that the term "ear infection" is used interchangeably for otitis media, which is an infection in the middle ear cavity behind the eardrum, and otitis externa/external otitis, which is an infection in the external ear canal in front of the eardrum. The examiner stated that the Veteran's service-connected right ear otitis media could not cross over and affect the hearing in the opposite ear. Additionally, the examiner explained that the left ear hearing was normal to VA standards in June 2011 and 40 years after his separation in October 1971. The examiner concluded that she cannot find a connection between hearing in his left ear and a condition in his right ear. Following a careful review of the lay and medical evidence of record, the Board finds that service connection for left ear hearing loss is not warranted. The Board finds that the Veteran has a current diagnosis of left ear hearing loss and objective testing confirms that hearing loss is considered a disability for VA purposes. 38 C.F.R. § 3.385. Thus, the first element of service connection is met. The Veteran asserts hearing loss was caused by combat-related acoustic trauma, which has been conceded. Hence, the second element of service connection is also met. Thus, the remaining question is whether his current left ear hearing loss is etiologically related to his service. The Board finds that the preponderance of evidence of record demonstrates that the Veteran's left ear hearing loss is not etiologically related to service, to include as secondary to service-connected right ear disability. Specifically, the November 2021 VA examiner opined that the Veteran's hearing loss was less likely than not related to service or to secondary to his service-connected disability. The Board finds that this opinion is highly probative as to the issue of nexus as it addressed the relationship between left ear hearing loss and service, to include acoustic trauma and right ear disability by providing a discussion of both the history and medical literature in support of the conclusion, as directed by the Board remand. Specifically, the examiner explained that although the Veteran's MOS was highly probable for hazardous noise exposure, his July 1971 separation exam was normal with no threshold shift as compared to his February 1968 enlistment exam and he had no left ear hearing loss to VA standards in June 2011, 40 years after his separation in October 1971. The examiner stated that although it is recognized that the audiogram is an imperfect measurement, it is accepted as the objective basis for determining noise injuries. Notably, the examiner concluded that even if researchers are correct and delayed effects can be seen in cases where temporary threshold shift occurred, it does not apply to the Veteran because there were no threshold shifts during military service, temporary or otherwise. Additionally, as left ear hearing loss was not shown to have been manifested in the first year after service, the chronic disease presumptive provisions of 38 U.S.C. § 1112, 38 C.F.R. §§ 3.307, 3.309 do not apply. Service connection for left ear hearing loss based on continuity of symptomatology has also been carefully considered. However, the Veteran had normal hearing on separation examination and no hearing loss was documented in the 2010 VA treatment record. It was not until the 2011 VA examination that the first post-service complaints of hearing loss were revealed. As continuity of symptomatology is not demonstrated by evidence in the record, the Board finds that service connection for bilateral hearing loss on such basis is not warranted. In sum, regarding direct service-connection, the evidence of record is against a finding that the Veteran's left ear hearing loss is related to his service, to include as due to conceded in-service noise exposure. While the evidence reflects that the Veteran was exposed to military acoustic trauma, he did not have a hearing loss disability in-service; hearing loss was not manifested to a compensable degree within a year following his discharge from service; there has been no showing of continued hearing loss symptomatology since service; and the competent and probative medical opinion does not find an etiological relationship to service. The Board further finds that service connection for left ear hearing loss as secondary to his service-connected otitis media is not warranted. Although the Veteran has a current disability of left ear hearing loss and is service-connected for acute otitis media right, the evidence does not establish a nexus between his current disability and his service-connected disability. Specifically, the November 2021 VA examiner explained that the Veteran's service-connected right ear otitis media could not cross over and affect the hearing in the opposite ear. The examiner provided a detailed rationale to support this opinion. Consequently, the Board finds the November 2021 VA examination opinion persuasive and assigns it significant probative weight. The Board has considered the arguments raised in the appellate briefs, does not dispute that the Veteran experienced acoustic trauma during service, and acknowledges his contention that his left ear hearing loss was caused by his in-service military noise exposure or is secondary to service-connected ear disability. However, while lay persons are competent to provide opinions on some medical issues, the record does not demonstrate that the Veteran has special training or acquired any medical expertise to determine whether left ear hearing loss was due to his military noise exposure or secondary to right ear disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See also King v. Shinseki, 700 F.3d 1339, 1345 (2012). The Board finds the specific issue here, the etiology of his left ear hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 (2007). To this extent, his lay assertion regarding etiology is less persuasive than the medical evidence of record. Notably, despite the VA's renewed efforts to assist the Veteran in obtaining private medical evidence in support of his claim, to date, there are no medical opinions of record to the contrary establishing a medical link between left ear hearing loss and service or to his service-connected right ear disability. As such, the preponderance of the evidence shows that the Veteran's left ear hearing loss is not related etiologically to his service, to include in-service acoustic trauma, and is not secondary to service-connected right ear disability. Based on the above the Board finds that the preponderance of the weighs against a grant of service connection. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, there is no reasonable doubt to resolve, and direct and secondary service connection for left ear hearing loss must be denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Wilson, 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.