Citation Nr: 22017760 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 16-60 014 DATE: March 26, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's current bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within one year after active duty; continuity of symptomatology is not established; and the disability is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 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 July 2004 to November 2004, and from August 2005 to November 2006, to include service in Iraq and Kuwait. The Veteran also had additional periods of Reserves service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 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 the hearing has been associated with the record. By way of history, these matters were previously before the Board in April 2020, June 2021, and November 2021, at which times they were remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development or for further compliance with the previous remand directives. The Board finds at this time that the November 2021 remand directives have been substantially complied with and in consideration with the appeal, will proceed with appellate review. 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that his bilateral hearing loss is related to noise exposure he experienced during his active-duty military service as a gunner. 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). Certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, will be presumed 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. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a)(3). 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 (1990). Turning to the evidence of record, the Veteran attended a VA examination in April 2014 and his hearing test results showed that he had a bilateral hearing loss disability for VA purposes. As a result, the first element of service connection, a current disability, has been met. See Shedden, 381 F.3d at 1167. Regarding an in-service event or incurrence, the Veteran asserts that during his active-duty military service, he was exposed to hazardous noise, particularly during his service in Iraq. The Veteran contends that he experienced many different types of weapons fires and its resultant noise, as well as noise from large aircraft such as the C-130 airplane while transporting detainees from south Iraq to the north. The Veteran asserted he was not issued any hearing protection during this time and began experiencing hearing loss that has persisted since. See e.g., August 2014 notice of disagreement; December 2016 VA Form 9. During the February 2020 Board hearing, the Veteran testified that while he was initially assigned a military occupational specialty (MOS) as a human resources specialist, during his deployment to Iraq he served as a gunner on a Humvee, which led to much of his hazardous noise exposure during active duty. The Veteran further testified that he only received small ear plugs during his deployment to Iraq, which were not very effective if they became wet (as would happen due to sweat). See February 2020 Board hearing transcript. Resolving all reasonable doubt in the Veteran's favor, the Board finds that an in-service injury or event is established. His DD Form 214 and information from the National Personnel Records Center reflect that he served in Iraq in 2005 and experienced combat. The Board finds the Veteran's statements regarding hazardous noise exposure during his deployment because of gun fire and aircraft noise to be consistent with the circumstances of his service. 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 persuasive evidence weighs against a finding that a nexus exists between the Veteran's bilateral hearing loss and his military service. Nexus opinions were obtained from VA examiners in April 2014, June 2020, and July 2021; however, they have been determined by the Board to be inadequate for adjudication purposes. As a result, an addendum VA opinion was obtained in December 2021 addressing the etiology of the Veteran's bilateral hearing loss was obtained following the November 2021 Board remand. The December 2021 VA examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event during active-duty military service. The December 2021 VA examiner stated "[the] Veteran's MOS had a low probability of hazardous noise exposure. He received an Iraq Campaign Medal and reports exposure to flight line, aircraft, small arms, large arms, artillery, explosions, communication systems, sirens, IEDs, and automatic weapons. Entrance exam and separation exam indicate hearing loss at 4000 Hz. However, there is no evidence of a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability. The Veteran's hearing loss is less likely than not caused by or a result of an event in military service." 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 (2008). The Board gives the December 2021 VA examiner's opinion great probative weight as the opinion was predicated on a detailed review of pertinent records, including the Veteran's in-service medical records, his statements, and post-service medical treatment records, and provides support for his conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). 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 hazardous noise exposure during service; however, the VA examiner clearly explains that there is no objective medical evidence of significant threshold shifts in service which would indicate that the Veteran's current disability and military service are related. 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. 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 2013. Furthermore, during the Veteran's February 2007 VA general medical examination, the Veteran's hearing was found to be "grossly normal" bilaterally. The Veteran was first diagnosed with hearing loss for VA purposes in April 2014, eight years after separation from active-duty service in November 2006. 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.