Citation Nr: 18143641 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-04 310 DATE: October 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence of record shows that bilateral sensorineural hearing loss was not manifested during, or a result of, active military service nor did it manifest within a year of separation. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral 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 Marine Corps from April 1970 to June 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. SERVICE CONNECTION Bilateral Hearing Loss The Veteran contends that his current bilateral hearing loss was caused by his military service while in Vietnam. VA has conceded he was likely exposed to hazardous levels of noise in the performance of his duties in the Marine Corps. 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 also 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) (stating, “the Secretary has made clean 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. The 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, 5 Vet. App. at 159. 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. See 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, 581 F.3d at 1316. 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. In February 1970, the Veteran underwent audiometric testing at his enlistment examination, which revealed hearing within normal limits for VA purposes. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 X 5 LEFT 15 5 10 X 0 Here, the Board notes X was in the medical file and is nondeterminative. The Veteran underwent another audiometer testing for his separation examination in June 1972. Again, his results revealed that his hearing was normal for VA purposes with no documented significant threshold shifts compared to his 1970 examination. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 5 25 5 LEFT 0 0 0 0 5 In January 2013, 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. The Veteran’s puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 65 75 75 LEFT 20 25 60 75 75 Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 80 in the left ear. The average decibel loss was 62 in the right ear and 59 in the left ear. The VA examiner noted the puretone testing indicated sensorineural hearing loss (in the frequency range of 500-4000 Hz) in both ears. The Veteran reported to the VA examiner that his hearing loss requires frequent requests for repetition of speech to understand what is being said. The VA examiner noted the Veteran’s history of noise exposure including exposure to weapons and explosive noise while in Vietnam as well as post-service factory work for 12 years. Upon conclusion of the examination, the VA examiner noted present bilateral hearing loss but opined that it is not likely that the Veteran’s hearing loss was due to in-service military noise exposure. The rationale for this opinion was that the Veteran’s STRs recorded normal hearing upon enlistment and separation, without any significant shift in hearing thresholds during the entirety of active duty service in the Marine Corps. In his February 2014 Notice of Disagreement (NOD), the Veteran wrote that his in-service acoustic trauma is proven as well as a current disability and that his hearing loss is related to his service. A review of the Veteran’s service separation form shows he was the recipient of a combat medal, and VA has conceded he was likely exposed to hazardous levels of noise in the performance of his duties in the Marine Corps. However, in-service noise exposure alone is not sufficient to support a service-connected hearing loss finding. Competent medical authority must relate the current hearing loss to noise exposure in service. The Board has considered the Veteran’s statements and finds him competent to report his hearing loss symptoms and exposure to noise in service. See Layno, supra. 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. See Jandreau, 492 F. 3d. 1372; Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009). As such, the Board gives greater probative weight to the opinion of the VA examiner. The examiner’s opinion is based upon an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In considering the evidence of record under the laws and regulations above, the Board finds that the Veteran’s bilateral hearing loss is not due to an in-service injury, incurrence, or disease. First, the audiometric test results of record during the appeal period do show that 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 Hertz. See 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 disability, but also a connection (nexus) between his service and the disability. See Shedden, supra. A review of the Veteran’s STRs reveals an absence of any complaints, diagnoses, or treatment for hearing loss or hearing related problems. The Veteran’s June 1972 separation examination included audiogram results showing normal hearing levels at his time of discharge. There is no medical evidence in the Veteran’s STRs or post-service treatment records showing the Veteran suffered from hearing loss as a result of his service. Additionally, the medical evidence does not suggest any manifestation of bilateral hearing loss within one year of separation. As such, there is no evidence of record to warrant granting service connection for bilateral hearing sensorineural loss on a presumptive basis. 38 C.F.R. § 3.309. (Continued on the next page)   Therefore, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for bilateral 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