Citation Nr: 18142661 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-34 828 DATE: October 17, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma while in service and is currently diagnosed with a bilateral hearing loss disability. 2. Chronic symptoms of bilateral hearing loss were not shown during service, did not manifest to a compensable degree within one year of service separation, and were not continuous since service. 3. The current bilateral hearing loss manifested many years after service separation and are not causally or etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1969 to March 1971. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply to certain diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. 38 C.F.R. § 3.303(b). Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. Id. The presumptive service connection provisions based on “chronic” in-service symptoms and “continuity of symptomatology” after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013) (holding that the “chronic” in service and “continuous” post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to “chronic” diseases at 3.309(a)). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered 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. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107 (b)). Bilateral Hearing Loss The Veteran asserts that his currently diagnosed bilateral hearing loss is due to in-service acoustic trauma; specifically, he relates it to exposure to noise from being an ammunition truck driver for 105, 155, and 8-inch guns, including a time when he stood close to an 8-inch gun when it was fired and the percussion from the gun knocked him down. The Veteran is currently diagnosed with a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. See e.g., February 2015 VA audiology examination report. Exposure to hazardous noise during service is conceded. The Veteran’s DD-214 shows that he was attached to an infantry unit during service and his military occupational specialty (MOS) was Artillery. His lay assertions as to the acoustic trauma he sustained are accepted as both competent and credible. Although his DD-214 does not reflect that he received a service medal or award specifically indicative of combat, all evidence taken together suggests that he likely engaged in combat given his MOS, the fact that he was attached to an infantry unit during the Vietnam era, and his receipt of Sharpshooter M-14 and Expert M-16 awards. The dispositive issue then becomes whether the Veteran’s bilateral hearing loss is related to the conceded in-service noise exposure. On review, the weight of the evidence demonstrates that symptoms of hearing loss did not have their onset during active duty service, were not manifested to a compensable degree within a year after discharge, and have not been continuous since service separation. The Veteran’s service treatment records show that during his April 1969 pre-induction examination he reported ear, nose, or throat trouble, and the examiner marked ears as abnormal, but indicated that the tympanic membranes were clear. The actual audiogram revealed hearing within normal limits, bilaterally. His March 1971 separation examination shows hearing within normal limits, bilaterally. The earliest diagnosis of hearing loss is not demonstrated in the record until July 2015, at which time the Veteran indicated that his hearing difficulties and tinnitus started in 2003. See VA audiology consult on July 23, 2015. Given the Veteran’s own lay assertions, his hearing loss did not start until over three decades after separation from service. For these reasons, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on either “chronic” symptoms in service or “continuous” symptoms since service have not been met. Additionally, for the same reasons, the evidence does not show that hearing loss manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation, but rather not until three decades later. Service connection on direct basis is also not warranted. In February 2016, the Veteran underwent a VA audiology examination, at which time the examiner, a clinical audiologist, confirmed a diagnosis of bilateral hearing loss. The examiner further acknowledged that the Veteran served on active duty in the United States Army where his MOS was artillery. The examiner further noted that the Veteran served in the Republic of Vietnam, was in receipt of the sharpshooter M-14 and expert M-16 awards. In addition, the examiner noted that the Veteran reported military noise from howitzers, cannons, artillery, helicopters, and base noise. Nevertheless, the examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to service. The examiner explained that the Veteran’s enlistment and separation examinations both show hearing within normal limits, bilaterally, with no threshold shifts noted from enlistment to separation. The examiner further explained that the Institute of Medicine (2006) stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiner also noted that the IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. At the time of the examination, the Veteran also reported that his tinnitus began approximately thirteen-years earlier, and the Veteran noted that his tinnitus was associated with the hearing loss. In his March 2016 notice of disagreement, the Veteran indicated that he believed his hearing loss was service related. He reported that he was an ammunition truck driver for 105, 155, and 8-inch guns, including a time when he stood close to an 8-inch gun when it was fired and the percussion from the gun knocked him down, and noted that when he got back on his feet, he was unable to hear a thing for the rest of the day. He further stated that there were several times on guard duty when they fired up the 50-caliber gun, and noted that they did not wear ear plugs then. He concluded that he could not remember everything that happened back then, but knew some of his hearing loss was from all the fun fire around him. In an August 2016 VA 646 statement, the Veteran’s representative indicated that neither the rating decision nor the statement of the case mentioned that the Veteran was a combat Veteran in Vietnam in an infantry unit and his lay testimony must be given a higher probative value. The representative further noted that the Veteran was assigned to the 3rd BDE, 9th Infantry, and asked that this should be considered as “in-service evidence as the cause of his hearing loss.” While acknowledging these arguments, the Board finds that they are without merit. First, exposure to acoustic trauma was indeed considered by the February 2016 VA examiner, as well as by VA. Second, as determined above, acoustic trauma in service is conceded. Third, the Veteran’s combat service is also conceded and was considered by the VA audiologist who provided the etiology opinion. Both the rating decision and statement of the case acknowledged the Veteran’s Vietnam era service, but rather denied the claim for a lack of nexus, not for lack of noise exposure in-service. Accordingly, the Board finds that the Veteran’s contentions in these instances do not warrant a remand of the claim. On the issue of a nexus, the Board assigns high probative value to the February 2016 VA audiologist’s opinion. The audiologist reviewed the claims file, examined the Veteran, took into consideration the conceded in-service noise exposure and the Veteran’s lay reports as to the type of acoustic trauma he sustained, to conclude that hearing loss was not caused by the in-service noise exposure. The Veteran has not submitted a competent medical opinion in support of his claim. The Board recognizes that the Veteran, as a lay person, is competent to report past and current hearing loss symptoms; however, he does not have the requisite medical expertise to render a competent medical opinion regarding the relationship between current hearing loss and active duty service. Indeed, an opinion as to the etiology of the Veteran’s hearing loss involves making findings based primarily on medical knowledge of auditory disorders. It is a complex medical question dealing with the neurologic system (acoustic trauma and nerve damage). The Board finds that the February 2016 VA audiologist’s opinion outweighs the lay evidence in this case. Indeed, the audiologist has expertise and training in the area of auditory disorders, which the Veteran under the facts of this case is not shown to have. (Continued on the next page)   Accordingly, the Board finds that the competent and credible evidence weighs against finding that the Veteran’s bilateral hearing loss was causally or etiologically related to service; therefore, the appeals are denied and the benefit-of-the-doubt doctrine does not apply. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel