Citation Nr: 18144774 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-52 860 DATE: October 25, 2018 ORDER Service connection for hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s current bilateral hearing loss was incurred in or otherwise the result of his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1966 to July 1968. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical 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 present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In Walker, the Federal Circuit limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as “chronic” in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This includes sensorineural hearing loss Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. at 159. Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran’s February 1966 service entrance examination report contained an audiogram with the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 0 5 5 RIGHT 15 10 0 0 25 His military occupational specialty (MOS) was Wheeled Vehicle Mechanic, which is highly probable to have noise exposure. There were no complaints, treatment, or diagnoses of hearing loss in service. His July 1968 service separation examination contained an audiogram with the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 5 X 5 RIGHT 5 5 5 X 25 Post-service, the Veteran first sought medical treatment for his complaints of hearing problems in October 2012. At a VA audiological consultation, an audiogram revealed hearing within normal limits through 2000 Hz, and precipitously sloping to a severe high frequency sensorineural hearing loss in both ears. His speech recognition ability was 100 percent in both ears. He reported to clinicians that he had military noise exposure and occupational noise exposure, but no recreational noise exposure. He was subsequently issued hearing aids. He continued to report difficulty hearing with background noise or more difficult listening situations. A VA opinion was obtained in June 2016 which found that the Veteran’s hearing loss was less likely than not related to his military service, as he had normal hearing at service entrance and separation with no significant threshold shifts in either ear, indicating no evidence of acoustic trauma or hearing loss in either ear. A VA audiological examination was conducted in August 2016 which revealed the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 20 70 75 RIGHT 5 10 30 65 75 Speech discrimination was 92 percent in each ear. The Veteran reported that he did not have any hearing protection in service. He also noted that his occupational history post-service included work as an executive managing service stations, working in management in the citrus industry, working as a computer software developer, and working as a bus driver. His recreational noise exposure included target shooting, motorcycle riding, and attending concerts. He denied other ear-related symptoms. In the Veteran’s October 2016 Substantive Appeal, he stated that his MOS caused him to spend long periods of time in extremely noisy work environments without hearing protection. He reported one incident when enemy rockets were fired into the compound he was stationed in near Danang, Vietnam, in which one round exploded six to eight feet from him, with a fragment piercing his wall locker which was inches from his head. He also stated that he sought medical help post-service but was told nothing could be done for his hearing loss, so he just struggled with hearing deficiencies. It is apparent that the Veteran had acoustic exposure in service, given his MOS and his competent reports of his experiences in Vietnam. It is also clear that he currently has hearing loss for VA purposes, as evidenced by the August 2016 audiogram results. However, there is no probative evidence that there is a nexus between the conceded noise exposure and his current hearing loss. The Veteran had normal hearing results upon separation from service – with his hearing acuity actually improved across several puretone thresholds since service entrance. Although he has described hearing deficiencies since service and as a layperson he is competent to report problems hearing, there is no medical evidence of hearing loss until October 2012, more than forty years after separation. He has also reported occupational noise exposure to clinicians. The Board finds the normal hearing results upon service separation, the large gap in time from separation to medical evidence of hearing loss, the Veteran’s post-service noise exposure, and the June 2016 findings of the VA clinician to be highly probative evidence. The Board finds that the preponderance of the evidence is against granting service connection. See 38 C.F.R. 3.303(a). The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel