Citation Nr: 1806107 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 16-23-329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. C. Birder, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from March 1961 to March 1965, with additional reserve service. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) 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). FINDINGS OF FACT A hearing loss disability was not shown during service or for many years thereafter, and the most probative evidence indicates the Veteran's current bilateral hearing loss disability is not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted 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. Evidence of continuity of symptomatology from the time of service until the present is required when the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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 a period of war, or during peacetime service after December 31, 1946, and a chronic disease, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination from active service, such disease shall be presumed to have been incurred in service, even though there is no evidence of the disease during the period of service. 38 U.S.C. §§ 1101, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. Id. Under the laws administered by VA, impaired hearing is a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. When audiometric test results at a Veteran's separation from service do not establish a disability at that time, the Veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board has reviewed all evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his currently diagnosed bilateral hearing loss was caused by in-service exposure to hazardous noise, without adequate hearing protection, while working in and around loud aircraft engines in the Air Force. As an initial matter, the Veteran has a current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385, as shown by VA examination in May 2015. Additionally, the Board acknowledges that the Veteran experienced excessive noise exposure as an aircraft flight control specialist in the Air Force. Therefore, the remaining question before the Board is whether the currently diagnosed bilateral hearing loss disability is related to his service. The Board finds the most probative evidence of record weighs against the claim. The Veteran's service treatment records (STRs) do not indicate any complaints of, treatment for, or diagnosis of impaired hearing. The Veteran's separation audiogram revealed hearing within normal limits. The Veteran's hearing at discharge is noted as "normal" and his medical history noted as "excellent." There is no medical evidence of record showing a hearing loss disability at any point during service or within one year after discharge. The focus, thus, becomes whether the Veteran's current bilateral hearing loss disability is caused by or related to service. On this question, the preponderance of the competent and probative evidence is against the claim. The first evidence of record showing bilateral hearing loss disability is a private audiogram in 2013, more than forty years after discharge. However, that audiogram did not provide an opinion as to the etiology of the Veteran's current hearing loss. The Veteran was afforded a VA audiological examination in 2015, followed by a VA examination in June 2016. An additional VA opinion was provided in May 2017. Each examiner reviewed the claims file and opined the data is consistent with bilateral sensorineural impairment, but that it is less likely than not the Veteran's hearing loss is related to military noise exposure. The examiners noted that hearing was normal on separation examination and there was no evidence of significant threshold shifts between enlistment and discharge. Additionally, the May 2017 examiner addressed the question of whether the Veteran's in-service noise exposure resulted in delayed onset hearing loss. However, the examiner opined it is unlikely that such delayed effects occurred in this case, reasoning there is not sufficient scientific studies to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. The examiner cited to studies and treatise information from the National Academy of Sciences (NAS). The examiner concluded that the Veteran's hearing loss is less likely than not caused by military noise exposure. The Board finds the May 2015, June 2016 and May 2017 medical examiners' opinions collectively to be highly probative and persuasive; each reviewed the claims file, examined all relevant facts and provided a an articulated rationale for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-304 (2008) (the factually accurate, fully articulated, sound reasoning for the conclusion contribute to the probative value of a medical opinion). Importantly, there is no competent and probative medical opinion to the contrary. The Veteran submitted a medical article to support the theory of delayed or latent onset of noise-induced hearing loss. This article, however, is not specific to the Veteran, his medical situation or personal history, and does not address the nexus between his in-service acoustic trauma and current hearing loss. Accordingly, that evidence is afforded minimal, if any, probative value. The Board finds the May 2017 examiner's opinion, which included discussion of treatise information from the NAS, to be more probative. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). The Veteran also asserts the May 2017 medical examiner did not consider Hensley v. Brown, in which the court found 38 C.F.R. § 3.385 did not preclude service connection for a current hearing disability when hearing was within normal limits on audiometric testing at separation from service. See Hensley, 5 Vet. App. 155 (1993). However, Hensley does not stand for the proposition that normal hearing at separation warrants service connection; rather, it stands for the proposition that normal hearing at separation does not preclude service connection where evidence of a nexus exists. Here, the VA examiners considered the evidence of record, but found no such medical nexus exists. The Board does not doubt the sincerity of the Veteran's belief that his hearing loss disability is related to service. However, the diagnosis of hearing loss and etiology of such are matters not capable of lay observation and require medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay person is competent to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran's opinion as to the onset and etiology of his hearing loss disability is not competent medical evidence. The Board finds the in-service audiograms and opinions of the VA examiners to be significantly more probative than the Veteran's lay assertions. In sum, a hearing loss disability was not shown in service or for decades thereafter, and the most probative evidence of record indicates the current hearing loss disability is not related to service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for bilateral hearing loss is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs