Citation Nr: 18139902 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-06 882 DATE: October 1, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss is not etiologically related to a disease, injury, or event in service nor was a bilateral hearing loss disability manifested to a compensable degree within one year of discharge from service. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by service, nor may such incurrence be presumed. 38 U.S.C.A §§ 1101, 1110, 1112, 1137 (2017); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), (b), and (d); 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Service Connection for bilateral hearing loss. The Veteran contends that he is entitled to service connection for bilateral hearing loss due to his in-service military noise exposure. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (West 2014). In this case, sensorineural hearing loss is a “chronic disease” listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown as such in service, 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d) (2015). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015); Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). In the instant case, there is no presumed service connection because the Veteran was not diagnosed with a hearing loss disability within one year of service and, indeed, was not diagnosed until decades after service. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (the Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service-connected. Id. at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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 (2015). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that “although interest may affect the credibility of testimony, it does not affect competency to testify”). Turning to the evidence of record, the Veteran’s DD-214 shows that his military occupational specialty (MOS) was Radio Operator onboard naval vessel USS Colleton. As such, the Board finds that the Veteran’s report of in-service noise exposure is consistent with the place, type, and circumstances of his service. See 38 U.S.C. § 1154(a). Therefore, the Veteran’s claim turns on whether his currently diagnosed bilateral hearing loss is related to his military service. In this regard, the Veteran underwent a pre-induction physical evaluation in February 1966 and a separation physical exam in October 1968, at which time his auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because of the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The Veteran’s February 1966 pre-induction audiometric test reveals that the Veteran’s pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) X 0 (5) LEFT 0 (15) 0 (10) 0 (10) X 0 (5) The Veteran’s October 1968 separation audiometric test reveals that the Veteran’s pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) These results do not show a hearing shift at any interval for VA purposes. All thresholds are below 20 dB. There is no indication in the record that the Veteran experienced hearing loss or impairments during treatment. His service treatment records do not demonstrate any hearing issues or complaints during the Veteran’s noise exposure between 1966 and 1968. Further, the record shows that the hearing loss was diagnosed decades after the Veteran’s discharge from service. Post-service, the Veteran worked in a factory as a mill and lathe operator for 30 years with hearing protection. He was also exposed to recreational noise exposure due to deer hunting. The Veteran has a current diagnosis of bilateral hearing loss as evidenced by a February 2015 VA examination. The Veteran’s Maryland CNC test scores show the left ear with 54 percent speech discrimination and the right ear with 64 percent speech discrimination. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 60 85 80 105+ LEFT 5 25 70 80 85 The VA examination report concluded that the Veteran’s current hearing loss was less likely than not related to his in-service noise exposure. The examiner noted that the pre-induction physical examination indicated normal hearing limits at 4000 Hertz. The examiner was a trained medical professional and thus competent to draw such opinion. The examiner noted that the Veteran did not display hearing loss at his exit examination, and did not report hearing loss until many years after he left service. This opinion is supported by the medical evidence of record, including the Veteran’s service treatment records. At the time of the Veteran’s exit examination in October 1968, the audiometric findings showed normal hearing with no threshold shift sustained while in the military. Further, there were no reports of hearing loss in-service. Thus, the examiner’s rationale is consistent with the medical evidence. The Veteran contends that he had chronic hearing symptoms in service. On his February 2014 Statement in Support of Claim, the Veteran reported that the noise of the artillery firing from the 3-inch 50’s artillery would cause his ears to ring and hurt. Here, the February 2015 VA examination showed current hearing loss in both the left and right ear. Additionally, due to the nature of the Veteran’s service, the VA has conceded harmful, in-service noise exposure. Thus, the two first Hickson elements, a current disability and an event or injury in service, have been satisfied. The remaining element for establishing service connection requires a nexus, or an etiological connection, between the in-service event or injury and the current bilateral hearing loss. The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss. Therefore, lay opinion could possibly be sufficient to serve as the required nexus for the Veteran’s claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, determining the precise etiology of the Veteran’s hearing loss is not a simple question, as there are conceivably multiple potential etiologies of the Veteran’s sensorineural hearing loss. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. The Veteran’s contention about the cause of his hearing loss is not sufficient to outweigh the opinion of the February 2015 VA expert that carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (“The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.”). Thus, the Board finds that the lay opinion is not entitled to significant weight as compared to the VA opinion which determined that the Veteran’s bilateral hearing loss is not related to his service. While the Veteran contends that he had chronic symptoms in service, the Board finds that evidence contemporaneous to his service is more reliable regarding the state of his health. Specifically, the Veteran’s 1968 separation report shows the Veteran denied any “ear, nose or throat trouble.” A contemporaneous statement as to a declarant’s then-existing physical condition, such as his medical examination reports and history reports (as opposed to his current statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, the medical history report is accepted as the credible and accurate account of the condition of the Veteran’s hearing during service and upon discharge. There is also no medical evidence or credible lay evidence that hearing loss manifested to a compensable degree within one year of the Veteran’s discharge from service. Therefore, presumptive service connection or service connection based on the theory of continuity of symptomatology is not warranted. (Continued on the next page)   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, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the case is denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel