Citation Nr: 18143617 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-19 594A DATE: October 19, 2018 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is denied. FINDING OF FACT The most probative evidence of record shows that bilateral sensorineural hearing loss was not manifest during or a result of, active military service or within a year of service. CONCLUSION OF LAW The criteria for service connected bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1979 to August 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2014 rating decision of the Department of Veterans Affairs (VA) Nashville, Tennessee Regional Office (RO). Service Connection Bilateral Hearing Loss The Veteran contends that his current bilateral hearing loss was caused by noise exposure due to his active duty military occupational specialty (MOS) as a wheel vehicle mechanic and wrecker operator. The RO has conceded noise exposure due to the Veteran’s MOS. See April 2016 Statement of the Case. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004).). Service connection may be granted for any disease or injury 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). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Bilateral sensorineural hearing loss is an organic disease of the nervous system and thus falls within 38 C.F.R. § 3.309(a). See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (“[T]he Secretary has made clear that sensorineural hearing loss is considered subject to 3.309(a) as an ‘[o]rganic disease[ ] of the nervous system’”.). Alternatively, for the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §§ 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. VA considers impaired hearing to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis from a grant of service connection for hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is competent to testify he has decreased hearing acuity. The Veteran, however, is not competent to establish bilateral hearing loss disability for VA purposes, as this is a medical question that must be based on audiometric testing pursuant to 28 C.F.R. § 3.385. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, incurrence, or disease. During his August 2014 VA audiological examination, the Veteran contended his hearing loss began in 1980. Thus, the Board begins its assessment at the closest examination point to the contended onset date. The Veteran underwent audiometer testing as part of his annual exam in November 1982. His results revealed his hearing was normal for VA purposes, with no significant threshold shift recorded. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 10 20 LEFT 20 5 0 10 15 The Veteran underwent another audiometer testing at his separation examination in July 1984. Again, his results revealed that his hearing was normal for VA purposes. Furthermore, the Veteran reported having no hearing loss during his service. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 10 15 LEFT 5 0 5 15 15 Private treatment records include a June 2014 audiogram with a private audiologist at a big box retailer, which revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 50 55 55 LEFT 25 25 55 50 50 The examiner noted a mild to moderate slope at 1000-2000 Hz and issues with clarity. In August 2014, the Veteran was afforded a VA audiological examination. The VA audiologist reviewed the claims file; considered the Veteran’s lay statements; and conducted a audiological examination. His puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 45 60 55 LEFT 15 20 50 50 50 Speech audiometry revealed speech recognition ability of 90 percent in the right ear and of 100 percent in the left ear. The average decibel loss was 45 in the right ear and 43 in the left ear. The Veteran reported to the VA audiologist he has challenges hearing communications from others, relying on requests for repetition, as well as lip reading. He also reported having to listen to the television and radio at elevated volumes. Upon conclusion of the examination, the VA examiner noted bilateral sensorineural hearing loss but opined that it is less likely than not that the Veteran’s hearing loss was due to in-service military noise exposure. The rationale for this opinion was that the Veteran’s service treatment records (STRs) recorded normal hearing upon enlistment and upon separation without any significant shift in hearing thresholds during the entirety of active duty service in the Army. The examiner also noted, as per a 2006 Institute of Medicine study, there is not sufficient evidence to determine whether permanent noise-induced hearing loss can develop long after the end of such noise and that it is unlikely such delayed effects occur. The Veteran underwent a further private examination in November 2015 with another private audiologist. The private audiological examination revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 50 55 50 LEFT 25 15 50 50 50 The examiner reported normal hearing sloping to mild to moderate hearing loss, as well as normal to borderline normal and mild to moderate sensorineural hearing loss at 2000-8000 Hz. In considering the evidence of record under the laws and regulations above, the Board finds that the Veteran’s current bilateral sensorineural hearing loss is not due to an in-service injury, incurrence, or disease. Therefore, it does not warrant granting service connection. First, the audiometric test results of record during the appeal period do show the Veteran has sensorineural hearing loss with auditory thresholds of 40 decibels or greater, or 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000. 38 C.F.R. § 3.385. Thus, the competent evidence of record establishes that the Veteran has bilateral hearing loss that meets the VA criteria for disability. However, a Veteran seeking disability benefits must establish not only the existence of a present disability, but also a connection (nexus) between his service and the disability. See Shedden, supra. In his September 2015 Notice of Disagreement (NOD), the Veteran wrote that his hearing loss “is from firing weapons in the army, repeatedly.” He also contends that four different doctors have told him “that the hearing loss is from firing weapons[.]” The Board has considered the Veteran’s statements and finds him competent to report his hearing loss symptoms and exposure to noise in service. However, the determination of whether the Veteran’s current hearing loss is related to in-service noise exposure is a complex medical question that requires audiological expertise. Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316. A review of the Veteran’s submitted medical records, both private and VA, either do not relate his current hearing loss to noise exposure in service or do not mention etiology at all. The Board gives great probative weight to the opinion of the VA examiner. The audiologist conducted a thorough audiological examination; analyzed audiometric findings; considered lay evidence; and supported the conclusion that it is reasonable to conclude that the Veteran’s bilateral hearing loss is less likely as not related to the Veteran’s military service. The private treatment records were silent as to etiological opinions. Thus, the Board gives less probative weight to the June 2014 and November 2015 private audiologist opinions. Furthermore, despite the Veteran reporting a hearing loss onset of 1980 during his 2014 VA examination, in his STRs from 1982 and 1984 the findings show normal hearing levels with no significant threshold shifts and at his separation examination in 1984, and the Veteran himself reporting having no hearing loss. The medical evidence also does not suggest any manifestation of bilateral hearing loss within a year of separation. As such, there is no evidence of record to warrant granting service connection for bilateral sensorineural hearing loss on a presumptive basis. 38 C.F.R. § 3.309. Therefore, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for bilateral sensorineural hearing loss, and there are no doubts to be resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. C. Slaughter, Associate Counsel