Citation Nr: 18140498 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-22 197 DATE: October 3, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss disability did not begin in service or manifest within the first post-service year, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1960 and August 1963. In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of the hearing is of record. In October 2017, the Board remanded the Veteran’s claim for additional development and adjudication. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the remand orders of the Board’s October 2017 remand, and no further action is necessary in this regard. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to service connection for bilateral hearing loss Service connection may be granted for disabilities due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, to include arthritis and organic diseases of the nervous system (such as sensorineural hearing loss), may be presumed to have been incurred or aggravated in service, if they are manifested to a compensable degree within a specified period of time post-service (one year for arthritis). 38 U.S.C. §§ 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Service connection may alternatively be established for chronic diseases listed under 38 C.F.R. § 3.309 (a) by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, to substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that he has bilateral hearing loss as a result of hazardous noise exposure in service, to include due to artillery fire. On the Veteran’s August 1960 service enlistment examination, pure tone thresholds were not tested. However, the Veteran underwent a whisper test, where he scored 15/15 in both ears. On separation examination in July 1963, pure tone thresholds, in decibels, were as follows: 500 1000 2000 3000 4000 Right 5 5 5 N/A 5 Left 5 5 5 N/A 5 Furthermore, the Veteran noted in his accompanying Report of Medical History at his separation, that his ears and hearing were normal, and the examiner noted that the audiometric examination was normal.   On December 2017 VA audiological examination, pure tone thresholds, in decibels, were as follows: 500 1000 2000 3000 4000 6000 8000 Right 25 40 50 80 85 85 80 Left 30 35 45 75 75 70 65 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The Veteran reported gradual onset of hearing loss that he noticed several years after his discharge from service. The examiner opined that it is less likely than not that the Veteran’s hearing loss was the result of military service because audiometric tests were normal prior to separation and he did not find evidence of a significant audiometric threshold shift during service. In August 2017, the Veteran testified at a Board hearing. He reported that he served in the Army in an artillery division, and that he fired cannons without wearing ear protection. The Veteran testified that post-service he worked as a pharmacist. He also said that he did some target shooting, but always wore ear protection, and had little to no recreational noise exposure. At the outset, the Board notes that, for VA purposes, 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, or 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. Thus, it is not in dispute that the Veteran has a current bilateral hearing loss disability. However, as bilateral hearing loss was not diagnosed in service, service connection for such disability is not warranted on the basis that it began in service and has persisted. Moreover, there is no evidence that sensorineural hearing loss first manifested to any degree in the first post-service year. Furthermore, the Veteran does not allege that he has had continuous symptoms of hearing loss since service. Thus, service connection for bilateral hearing loss is also not warranted on a presumptive basis as a chronic disease under 38 U.S.C. § 1112. What remains for consideration is whether the Veteran’s bilateral hearing loss may otherwise be directly related to service. To that end, the Board finds that the Veteran is competent to report exposure to hazardous noises in service and notes that his military occupational specialty reflects that he was a clerk typist, however it also notes that he received a sharpshooter designation. Therefore, acoustic injury in service is conceded. Consequently, the claim hinges on whether his current bilateral hearing loss is, in fact, related to the conceded noise exposure. Whether such a relationship exists is a medical question beyond the scope of lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Thus, any explicit or implicit lay allegations of a medical nexus from the Veteran are not probative evidence. Here, the only pertinent medical opinion is from the December 2017 VA examiner. His negative opinion is based on the fact that there was no significant threshold shift in service and normal audiometric testing at separation. Thus, the Board finds that opinion is supported by adequate rationale. Absent any other opinion or medical evidence to the contrary, it is highly probative and persuasive in this matter. Accordingly, service connection for bilateral hearing loss, on the basis that it is otherwise related to the Veteran’s service or noise exposure therein, is also not warranted. In light of the above, the Board finds the preponderance of the evidence is against finding the Veteran’s current bilateral hearing loss disability was incurred in, or is otherwise related to, his military service; thus, the benefit of the doubt rule does not apply, and the appeal in that matter must, unfortunately, be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel