Citation Nr: 22017571 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-35 462 DATE: March 25, 2022 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The evidence is persuasively against finding that the Veteran's right ear hearing loss is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to November 1991. He served in the U.S. Air Force. The Board thanks the Veteran for his service to our country. The issue of service connection for right ear hearing loss was previously before the Board in December 2019, when the Board denied the claim. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2020 Order, granting an October 2020 Joint Motion for Remand (Joint Motion), the Court vacated and remanded the December 2019 Board decision consistent with the terms of the Joint Motion. The Board remanded this case in March and June 2021 for additional development. Pursuant to the June 2021 Board remand, in a June 2021 letter, the Agency of Original Jurisdiction informed the Veteran that he could authorize VA to release service treatment records to himself or to a private medical professional of his choice and enclosed a VA Form 3288. The case has now returned to the Board for further appellate review. The Veteran testified before another Veterans Law Judge (VLJ) at a Board videoconference hearing in August 2019. A transcript of the hearing is of record. In January 2022, the Veteran was informed that the VLJ before whom his hearing was held was no longer with the Board. He was offered the opportunity to request a new hearing; he was advised that if he did not respond within 30 days of the letter, it would be assumed that he did not want another hearing. As the Veteran did not respond within the time period, the Board will proceed with adjudication. Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that service connection is warranted for right ear hearing loss as related to his duties as an airlift aircraft maintenance specialist in service. The Board finds that service connection is not warranted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required 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. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In this case, a February 2016 audiological evaluation demonstrates that the Veteran's right ear impaired hearing constitutes a disability under 38 C.F.R. § 3.385. The Board acknowledges that the Veteran was an airplane mechanic in service and therefore had in-service noise exposure. As the first two elements of service connection are met, the question at issue is whether the Veteran's bilateral hearing loss is at least likely as not related to service. In this case, the Veteran had normal right ear hearing in a January 1986 entrance examination. In an October 1991 separation medical examination, on clinical evaluation, ears and drums were noted to be normal and the examiner noted in the summary of defects and diagnoses unilateral left ear sensorineural hearing loss. There are no complaints, findings, treatment, or diagnosis of right ear hearing loss in his service treatment records. The Veteran's hearing thresholds during service and in a June 1992 VA examination report are as follows: HERTZ 500 1000 2000 3000 4000 Jan. 1986 10 10 5 5 10 Nov. 1988 10 10 5 15 5 Oct. 1991 10 20 5 10 15 June 1992 5 25 10 10 25 In the June 1992 VA examination report, the Veteran's right ear speech recognition score was 94 percent. The examiner noted right ear hearing within normal limits and mild to moderately severe left ear sensorineural hearing loss; the Veteran also reported constant unilateral tinnitus which had its onset approximately 2 years prior and which he attributed to his in service duties. In a December 2000 audiological evaluation, right ear hearing thresholds were 15, 45, 25, 30, and 45 decibels for 500, 1000, 2000, 3000, and 4000 Hertz, respectively. The evaluator noted a significant difference in his right and left ear hearing. In a June 2002 ENT consultation, the provider noted significant asymmetric hearing loss. The provider stated that the audiogram was unusual in that the right ear audiogram resembled a familial hearing loss with a U-shaped dropping to 40 and 50 decibels at 1500 and 1000 Hertz while the left ear was more compatible with standard high-frequency sensorineural hearing loss with a relatively rapid hearing loss fall off above 1000 Hertz. The provider stated that he had an unusual hearing loss that suggested a high frequency sensory loss in the left ear superimposed on top of a congenital hearing loss. In a July 2002 audiology diagnostic study note, the Veteran reported decreased hearing ability that was better in the right ear and that his left ear had been worse since his time in service. He reported working since discharge at a power plant in an area which did not require hearing protection. The provider noted mild to moderate right ear hearing loss and moderate to severe left ear hearing loss, and word recognition scores better in the right ear than in the left. In a March 2009 VA examination report, the Veteran reported constant ringing in the left ear which started in service. The examiner noted that hearing sensitivity had decreased significantly in the right ear and slightly for the left ear since the Veteran was evaluated in 2002. In a February 2016 VA examination report, the Veteran relayed working in an area where hearing protection was not required. In a May 2016 addendum opinion, the examiner concluded that the Veteran's right ear hearing loss is less likely than not related to noise exposure, noting that his October 1991 separation examination was well within normal limits in the right ear from 500 to 6000 Hertz and there was no significant threshold shift for the right ear when compared to his entrance examination. The examiner concluded that there was therefore no evidence that his current right ear hearing loss was a result of in service noise exposure. In a May 2017 VA examination report, the examiner concluded that the Veteran's right ear hearing loss was less likely than not related to service as there were no significant threshold shifts from entrance to separation. In a September 2019 private evaluation, the audiologist noted moderate to severe sensorineural hearing loss in the right ear and an asymmetrical sloping moderately severe to profound sensorineural hearing loss in the left ear. The audiologist noted that at discharge right ear sensorineural hearing loss was not evidence but that current findings displayed significant sensorineural hearing loss bilaterally. The audiologist noted high levels of noise exposure in service but stated that without obtaining his entrance hearing evaluations to determine any threshold shift at discharge, the cause of the hearing loss remained questionable. As stated above, in June 2021 the Veteran was informed that he could authorize VA to release service treatment records to a private medical professional of his choice and was provided a VA Form 3288; however, no response was received. In a September 2021 VA addendum opinion, the clinician concluded that the Veteran's right ear hearing loss is less likely than not related to service. The clinician, noting noise exposure on active duty, stated that a comparison of enlistment and discharge physicals showed no significant threshold shift, explaining that while left ear hearing loss progressed while on active duty, right ear hearing was relatively unchanged from enlistment until discharge. The clinician also noted that right ear thresholds at discharge were similar to those obtained in the June 1992 VA examination. Noting right ear hearing loss shown in 2002, the clinician concluded that right ear hearing loss manifested between 1992 and 2002. The Board finds that the evidence is persuasively against service connection for right ear hearing loss. The Veteran's service treatment records contain no notations of right ear hearing loss and, as stated by the September 2021 clinician, while left ear hearing loss progressed in service, right ear hearing was relatively unchanged from enlistment until discharge. Moreover, there is no competent evidence of record that the Veteran's current right ear hearing loss is related to in service noise exposure. The September 2019 private audiologist concluded that the cause of the hearing loss remained questionable as entrance hearing evaluations were not available to determine any threshold shift at discharge. While the Veteran contends that right ear hearing loss is related to his in service noise exposure, he is a lay person and does not profess to have the medical expertise required to determine the etiology of his disorder. Further, the evidence is persuasively against finding that the Veteran's right ear hearing loss meets the criteria for chronic diseases. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The Veteran's service treatment records do not reflect any complaints, findings, treatment, or diagnosis of right ear hearing loss. Additionally, while the Veteran's representative appears to contend that his symptoms were experienced and observed during service and continuous since service, the Board notes that he did not report hearing loss specific to the right ear noted during and continuing since service. In a July 2002 note he reported hearing loss and tinnitus in service but another note from the same day clarifies that left ear hearing loss had been worse since service. Moreover, the record does not reflect any continuity of symptomatology since service. Indeed, the June 1992 examination report noted right ear hearing within normal limits. Finally, the evidence of record does not reflect manifestations of right ear hearing loss for VA purposes within one year of separation from service; the September 2021 clinician noted that the June 1992 auditory thresholds were similar to those at discharge and the earliest reference to a hearing loss disorder under 38 C.F.R. § 3.385 is found in the December 2000 audiological evaluation. Hence, after reviewing all the evidence of record, the Board finds that the evidence is persuasively against the claim for service connection for right ear hearing loss. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.