Citation Nr: 18145869 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-30 223 DATE: October 30, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT The Veteran does not have a right ear hearing loss disability as defined by VA regulation. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1985 to March 1989. The bilateral hearing loss claim has been bifurcated to better reflect the medical evidence of record. In August 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for any condition listed in 38 C.F.R. § 3.303 (b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss can be considered an organic disease of the nervous system for which the theory of continuity of symptomatology is still applicable. Service connection may also be granted for any injury or disease diagnosed after service, 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). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying 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; 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. Entitlement to service connection for right ear hearing loss The Veteran contends he has had trouble hearing ever since service. His MOS was infantryman. An April 1988 audiogram indicates that he was routinely exposed to hazardous noise. Thus, noise exposure during service is conceded. Service treatment records (STRs) show normal ears during the April 1985 enlistment examination. The audiometric findings with respect to the right ear were recorded as follows: 5 decibels (dB) at 500 Hertz (Hz), 0 dB at 1000 Hz, 10 dB at 2000 Hz, 0 dB at 3000 Hz, and 5 dB at 4000 Hz. A periodic April 1988 examination shows normal ears. The audiogram contains the following audiometric findings with respect to the right ear: 0 decibels (dB) at 500 Hertz (Hz), 0 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, and 10 dB at 4000 Hz. STRs also show normal ears during the December 1988 discharge examination. The audiometric findings with respect to the right ear were recorded as follows: 0 decibels (dB) at 500 Hertz (Hz), 0 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, and 10 dB at 4000 Hz. The Veteran submitted to a December 2014 VA hearing loss examination. Audiometric findings with respect to the right ear were recorded as follows: 5 decibels (dB) at 500 Hertz (Hz), 10 dB at 1000 Hz, 10 dB at 2000 Hz, 20 dB at 3000 Hz, and 15 dB at 4000 Hz. Speech recognition was 100 percent. The examiner opined that the Veteran had normal hearing in his right ear. He noted that the three in-service audiograms also reflect normal hearing. The Veteran does not have auditory thresholds of 26 decibels for at least three of the required frequencies, he does not have a threshold of 40 decibels for any of the required frequencies, and his speech recognition is in excess of 94 percent. Accordingly, right ear hearing loss must be denied based on lack of current disability. See 38 C.F.R. § 3.385. The Veteran is competent to state that his hearing has decreased. See Charles v. Principi, 16 Vet. App 370, 374-75 (2002). However, as a layperson lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as an audiogram and his views regarding loss of hearing acuity are not as probative as the audiograms. Even if his opinion was entitled to be accorded some probative value, it is far outweighed by the audiological test evaluations of record, none of which shows a right ear hearing loss disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). REASONS FOR REMAND Entitlement to service connection for left ear hearing loss Service treatment records (STRs) show normal ears during the April 1985 enlistment examination. The audiometric findings with respect to the left ear were recorded as follows: 0 decibels (dB) at 500 Hertz (Hz), 0 dB at 1000 Hz, 0 dB at 2000 Hz, 5 dB at 3000 Hz, 15 dB at 4000 Hz, and 65 at 6000 Hz. A periodic April 1988 examination shows normal ears. The audiogram contains the following audiometric findings with respect to the left ear: 5 decibels (dB) at 500 Hertz (Hz), 0 dB at 1000 Hz, 5 dB at 2000 Hz, 10 dB at 3000 Hz, 25 dB at 4000 Hz, and 55 at 6000 Hz. STRs also show normal ears during the December 1988 discharge examination. The audiometric findings with respect to the left ear were recorded as follows: 5 decibels (dB) at 500 Hertz (Hz), 0 dB at 1000 Hz, 5 dB at 2000 Hz, 10 dB at 3000 Hz, 25 dB at 4000 Hz, and 55 dB at 6000 Hz. The December 2014 VA examination report reflects left ear hearing loss at 4000 Hz for VA purposes. The examiner provided a negative nexus opinion. He noted that the Veteran “entered the service with a moderately severe hearing loss at 6000 Hz in the left ear.” He also noted a moderate hearing loss at 6000 Hz upon discharge. The examiner opined that the pre-existing hearing loss was not aggravated beyond normal progression during the Veteran’s service. He reasoned that there were “no significant changes in threshold.” Unfortunately, this opinion is not adequate for rating purposes. To the extent that the December 2014 VA examiner found the Veteran had a pre-existing sensorineural hearing loss at 6000 Hz, the Board notes that such hearing loss is not considered a disability for purposes of VA compensation. Because the hearing loss noted on the Veteran’s enlistment examination did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the Veteran is entitled to the presumption of soundness under 38 U.S.C. § 1111. See McKinney v. McDonald, 28 Vet. App. 15 (2016). As such, the question is not whether the Veteran’s pre-existing hearing loss was aggravated during service. Rather, it is whether the Veteran developed hearing loss during service or as a result of service. A remand is necessary in order to obtain another VA examination and opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following action: Schedule the Veteran for a VA audiology examination with a different VA examiner than the examiner who performed the December 2014 VA examination to determine the etiology of his currently diagnosed left ear hearing loss. The examiner should determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left ear hearing loss is related to service or any incident of service, to include conceded in-service noise exposure. The examiner must address the Veteran’s credible contention that he has noticed left ear hearing loss since service, as well as the threshold shift in the 4000 Hz frequency (comparing the April 1985 enlistment audiogram with the December 1988 discharge audiogram). The Board also reminds the examiner that the Veteran is presumed sound for VA purposes with regard to hearing loss at the time of his enlistment examination. The examiner must not rely solely on the absence of hearing loss in service or upon separation as the basis for a negative opinion.   A complete rationale should be provided for any opinion expressed. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel