HEARING LOSS

Summary

The veteran, who served in the Army from July 1969 to April 1970, appeals the denial of service connection for bilateral hearing loss and the remand of claims for an acquired psychiatric disorder (depression and anxiety) and Total Disability based on Individual Unemployability (TDIU). The Board denied service connection for bilateral hearing loss, finding that while the veteran has a current hearing loss, the evidence did not establish its onset within the presumptive period or a nexus to service. The Board noted the veteran's lay testimony regarding noise exposure but found it insufficient to overcome the negative findings from VA examinations and the lack of in-service treatment records showing hearing loss. The Board also noted the veteran's inconsistent reporting of hearing loss onset. The Board denied the hearing loss claim, finding the weight of the evidence was against it. The Board remanded the psychiatric disorder claim, as the VA examiner found the veteran did not present with depression but did diagnose unspecified anxiety disorder, requiring a nexus opinion for that diagnosis. The TDIU claim was remanded as it was intertwined with the psychiatric disorder claim.

Rationale

Current bilateral hearing loss established; Onset not within presumptive period; No nexus to service established; Lay testimony regarding noise exposure insufficient; VA examinations negative for nexus

Full Decision Text

Citation Nr: 22015634
Decision Date: 03/18/22	Archive Date: 03/18/22

DOCKET NO. 17-23 544
DATE: March 18, 2022

ORDER

Service connection for bilateral hearing loss is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder, to include depression and anxiety, is remanded.

Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.

FINDING OF FACT

The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period, and the disability is not otherwise etiologically related to an in-service event.

CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Army from July 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

These claims were last before the Board in September 2021 where they were remanded for additional development which has since been completed, to include the obtainment of VA addendum opinions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The Veteran filed an original claim for entitlement to service connection for depression. However, the Board finds that recharacterizing the issueentitlement to service connection for an acquired psychiatric disorder, to include depression is more appropriate.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).

1. Entitlement to service connection for bilateral hearing loss

The Veteran contends that his bilateral hearing loss is etiologically related to in-service noise exposure. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Moreover, where a veteran served continuously for 90 days or more during active service, and hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309.

After careful review of the evidence, this appeal is denied.

Here, the evidence clearly demonstrates that the Veteran has a current bilateral hearing loss disability in accordance with VA regulations. 38 C.F.R. § 3.385; see, e.g., April 2015 and March 2020 VA examinations. However, the first indication that the Veteran met the criteria for a bilateral hearing loss disability pursuant at 38 C.F.R. § 3.385 was in July 1998, during a VA audiological evaluation. As this examination occurred nearly 30 years following service exit, this appeal does not succeed on a presumptive basis. 

During this appeal, the Veteran has also offered varying reports as to the onset of his hearing loss. See, e.g., March 2020 VA examination (reporting an onset of approximately 20 years prior); but see December 2016 lay statement (reporting "difficulties with communication due to his hearing loss soon after service"). Given the inconsistencies in his testimony on this point, the Board does not find competent and credible evidence that the Veteran's bilateral hearing loss onset within one year of service exit, nor is there objective medical evidence to the contrary. Thus, presumptive service connection is not warranted in this case.

However, the Veteran has reported multiple in-service incidents
 exit, this appeal does not succeed on a presumptive basis. 

During this appeal, the Veteran has also offered varying reports as to the onset of his hearing loss. See, e.g., March 2020 VA examination (reporting an onset of approximately 20 years prior); but see December 2016 lay statement (reporting "difficulties with communication due to his hearing loss soon after service"). Given the inconsistencies in his testimony on this point, the Board does not find competent and credible evidence that the Veteran's bilateral hearing loss onset within one year of service exit, nor is there objective medical evidence to the contrary. Thus, presumptive service connection is not warranted in this case.

However, the Veteran has reported multiple in-service incidents of noise exposure during this appeal, to include due to close proximity to an exploded hand grenade and from the bivouac used to transport food. See, e.g., December 2016 lay statement; April 2017 VA Form 9. His testimony regarding these exposures is well-documented in the record and consistent with the nature of his service, and there is no evidence which contradicts his recollections.  Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020).

Additionally, the Veteran's service medical records contain multiple reports of relevant symptoms and the treatment thereof. See generally service treatment records (STRs). Accordingly, the second element of direct service connection is met in this case.

As such, the question before the Board is whether a nexus exists between the Veteran's current disability and his military service.

In this respect, the Board has previously found April 2015, March 2020, and August 2020 VA opinions to be inadequate on this point, such that they will not be considered herein.

Rather, following a complete review of the medical record and the Veteran's occupational and medical history, a September 2021 VA examiner opined that the Veteran's bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure, the August 1969 left ear drainage, or the March 1970 otitis media or earaches.  The rationale was: 

Regarding the August 1969 ENT record showing the Veteran complaining of left ear drainage; notes revealed complaints of chronic otitis externa which was treated by physician. the type of hearing loss associated with otitis externa is a conductive/mixed loss and is transient in nature. The Veteran has a sensorineural hearing loss. The veteran was treated with medication and the ear infection resolved without sequelae. Additionally, an audiogram was performed at that time and results indicated normal hearing from 500 - 4000 Hz bilaterally. It is my opinion that it is not at least as likely as not that hearing loss is related to left ear drainage from August 1969.

Concerning the March 1970 reports of earaches; notes revealed complaints of otitis media which was treated by physician. The type of hearing loss associated with otitis media is a conductive/mixed loss and is transient in nature. The Veteran has a sensorineural hearing loss. The Veteran was treated with medication and the ear infection resolved without sequelae. It is my opinion that it is not at least as likely as not that hearing loss is related to otitis media from March 1970. 

For the March 1970 report of medical history showing that the Veteran was having trouble with his ears; notes revealed complaints of otitis media which was treated by physician. The type of hearing loss associated with otitis media is a conductive/mixed loss and is transient in nature. The Veteran has a sensorineural hearing loss. The Veteran was treated with medication and the ear infection resolved without sequelae. It is my opinion that it is not at least as likely as not that hearing loss is related to otitis media from March 1970. 

Lastly, reviewing the Veteran's lay statements that he has had hearing loss since his separation from service: Service treatment records revealed no significant thresholds shifts from entrance to exit in December 1968 to March 1970. Per case history interview in March 2020, the Veteran reported onset of hearing loss to be approximately 20 years ago, or approximately 30 years after leaving service. There is no indication of hearing loss while in service. The Veteran denied onset of hearing loss until 30 yrs following service. The first report of hearing loss is in 1998 when he filed a disability claim. Research does not support the concept of delayed onset of hearing loss after thresholds are recorded as normal after noise exposure. In its landmark report for noise and military service-implications for hearing loss and tinnitus (2006), the Institute of Medicine stated that there was no scientific basis on
 thresholds shifts from entrance to exit in December 1968 to March 1970. Per case history interview in March 2020, the Veteran reported onset of hearing loss to be approximately 20 years ago, or approximately 30 years after leaving service. There is no indication of hearing loss while in service. The Veteran denied onset of hearing loss until 30 yrs following service. The first report of hearing loss is in 1998 when he filed a disability claim. Research does not support the concept of delayed onset of hearing loss after thresholds are recorded as normal after noise exposure. In its landmark report for noise and military service-implications for hearing loss and tinnitus (2006), the Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. Based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. This study remains the definitive consensus in this matter. Therefore, it is my opinion that it is less likely than not that hearing loss is related to military service. 

See September 2021 Addendum Opinion. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data, with specific consideration as to the nature of the Veteran's in-service events and the onset of his current disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent opinion or medical evidence of record to contradict this medical opinion.

The Board does recognize the Veteran's firmly held belief that his present hearing loss is related to active duty noise exposure, but finds this of limited probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); 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).  In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his hearing loss, especially in light of the VA audiologist's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of bilateral hearing loss in service.  See id.  

In sum, there is no probative evidence of record establishing that the Veteran's bilateral hearing loss had its onset during service is or is otherwise related to service. As the weight of the competent and probative evidence is against the claim, service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded.

The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder, which he partly contends is secondary to his service-connected tinnitus. The Board finds additional development is needed prior to adjudication of this claim. 

An October 2021 VA examiner concluded that the Veteran did not present with depression, as claimed. As such, the examiner declined to offer a nexus opinion for the claimed depression. However, the examiner also diagnosed the Veteran with unspecified anxiety disorder at that time; a nexus opinion as to this diagnosis is required.

2. Entitlement to TDIU is remanded.

The issue of entitlement to a TDIU is intertwined with the service connection claim remanded above, as such may affect whether the Veteran meets the schedular criteria for a TDIU. Therefore, remand is warranted for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered).  

The matters are REMANDED for the following actions:

1.  Schedule the Veteran for a VA examination for his diagnosed unspecified anxiety disorder. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred.   

The examiner is asked to provide a response to the following:

(a) For each current psychiatric disorder, op
 for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered).  

The matters are REMANDED for the following actions:

1.  Schedule the Veteran for a VA examination for his diagnosed unspecified anxiety disorder. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred.   

The examiner is asked to provide a response to the following:

(a) For each current psychiatric disorder, opine as to whether it is at least as likely as not (50 percent probability or more) that the disorder was caused or aggravated by the Veteran's service-connected tinnitus or the treatment thereof?

The Veteran's testimony on this point must be directly considered by the examiner.

In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.    

A complete rationale must be provided for all opinions or conclusions expressed.  It should be noted that the Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 

2.  Determine if referral of the issue of whether a TDIU is warranted to VA's Director of Compensation Service for consideration on an extraschedular basis is warranted.  Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue.  See 38 C.F.R. § 4.16(b).

 

 

Kate E. Kovarovic

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. N. 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.