Citation Nr: 1800692 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-17 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from March 1955 to March 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Tiger Team in Cleveland, Ohio. Jurisdiction of the appeal currently resides with the Winston-Salem, North Carolina Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's current hearing loss disability did not have its onset during service, did not manifest within one year of separation from active service, and was not caused by his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not all been met. 38 U.S.C. §§ 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he developed bilateral hearing loss due to exposure to acoustic trauma in service. In considering the evidence of record, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Here, the first evidence of hearing loss is shown in August 2006 VA treatment records, over 40 years after service. Therefore, service connection may not be presumed based on manifestation within one year of discharge from active service. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). A hearing loss disability is defined for VA compensation purposes with regard to audiology testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. VA treatment records in August 2006 and a VA audio examination in March 2015 indicate a diagnosis of bilateral hearing loss and the record shows that this is consistent with § 3.385. Thus, the first element of service connection is satisfied. Service treatment records (STRs) do not indicate any complaints of or treatment for any hearing related problems. STRs indicate that the Veteran's ears were marked as normal on reports of medical examination and history. STRs indicate that a whisper hearing evaluation shows that the results were normal. The Veteran's DD-214 does not indicate the Veteran's military occupational specialty (MOS). In a September 2006 statement, the Veteran's friend indicated that she has known the Veteran for approximately 45 years and had noticed over the past years that the Veteran was having trouble hearing. In an August 2006 statement from the Veteran's spouse, she states that the Veteran had been experiencing hearing loss for the past few years. The Veteran underwent a VA hearing loss examination in March 2015. The examiner opined that the etiology of the Veteran's hearing loss is less likely than not due to noise exposure in the military. The examiner explained that by taking the configuration of hearing loss and his age that the Veteran's hearing loss is less likely due to military noise exposure. The examiner noted that there was no sharply dropped high frequency hearing loss, which is typically caused by noise exposure. The examiner noted that the Veteran reported that he served in the Navy for 4 years and did not participate in combat activity. The examiner noted that the Veteran reported firing weapons with both hands and that he did not use any hearing protection. The examiner indicated that there was not a strong history of noise exposure in the military. In April 2016, the Veteran submitted a VA Form 9 and stated that his hearing was damaged in service but that he was never given an audiology examination. The Veteran stated that he was exposed to gunfire during service but had no type of hearing protection. The Veteran states that he did not complain in service about his hearing but that the firing of the weapons was loud and his ears would have a ringing, muffled sound due to the loud sounds. The Veteran states that prior to service he had no problems with his hearing but that after his experiences in service, he began experiencing the ringing and muffled sounds in his ears and continues to experience hearing problems. When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Additionally, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds the March 2015 VA examiner's opinion to be the most probative evidence of record as to whether the Veteran's current hearing loss is related to the Veteran's active service. The examiner was fully aware of the Veteran's military noise exposure and any history of hearing loss, as noted in the record, and based his opinion on the evidence and examination of the Veteran. Based on the examiner's opinion, the Board cannot make a finding that the Veteran's hearing loss is at least as likely as not the result of acoustic trauma in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the Veteran has asserted that he has had hearing problems since service, he is competent to do so. However, his statements are not persuasive and evidence unfavorable to a finding that he had hearing loss present ever since service is more probative. STRs do not indicate that the Veteran reported hearing problems during service but do document that he sought treatment for other problems. As he reported other medical problems, it is reasonable to conclude that if he had hearing difficulty during service he would have sought treatment. The earliest post-service medical evidence of record reflecting the Veteran's complaints of hearing problems are in VA treatment records from August 2006, over 40 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board acknowledges that the Veteran experienced loud noise in service, and has considered his lay statements attributing his current hearing loss to his in-service noise exposure. While it is common knowledge that exposure to loud noise can cause hearing loss, the first medical evidence of record reflecting the Veteran's symptoms of hearing loss is from August 2006, over 40 years after his separation from service. The Board finds it likely that if the Veteran had significant symptoms for the many years following service, he would have sought treatment for his hearing problems closer in time to his separation from service. Accordingly, because of the lack of any symptoms or disability during service and for many years following service, the Board does not find the Veteran's recollections regarding hearing loss since service to be credible. Thus, the Board finds that the Veteran's statements as to the onset and continuity of symptoms are of little probative value. While the Veteran has stated his belief that his hearing loss is caused by acoustic trauma from the firing of weapons in service, the question of an actual association between his hearing loss, diagnosed many years after his separation from service, and his hazardous military noise exposure is a medical question too complex for lay person to competently address. See 38 C.F.R. § 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not demonstrated expertise in this area. Given the above, the Board finds that the most probative evidence of record shows that the Veteran's bilateral hearing disability is not due to an incident during service and did not begin in service or manifest within a year of separation from active service. Specifically, the March 2015 examination report and opinion regarding the etiology of the Veteran's bilateral hearing loss disability weigh heavily against his claim. Based on the foregoing, the preponderance of evidence is against a finding that the Veteran's current bilateral hearing loss is at least as likely as not etiologically related to his military noise exposure. Thus, there is no reasonable doubt to be resolved in the Veteran's favor, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hearing loss is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs