Citation Nr: 18146358 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-14 247 DATE: October 31, 2018 ORDER Service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of right ear sensorineural hearing loss for VA purposes. 2. The Veteran was exposed to in-service acoustic trauma from weapons fire. 3. Right ear hearing loss was not shown in service or at least within the one-year presumptive period after discharge from service and competent medical evidence is against a causal nexus. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1971 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA). Service connection for right ear hearing loss was last denied on the merits in an August 2002 rating decision. The Veteran did not initiate an appeal of this decision. Relevant service department records were received and associated with the claims file since that rating decision. Accordingly, VA will reconsider this claim without regard to the finality of that decision. 38 C.F.R. § 3.156 (c). Following the last adjudication of the appeal in a March 2016 statement of the case (SOC), VA received additional VA treatment records. A waiver of review by the Agency of Original Jurisdiction (AOJ) has not been obtained as this evidence is essentially duplicative of the prior evidence and/or not relevant. See 38 C.F.R. § 20.1304. With respect to the non-VA medical evidence submitted by the Veteran, it is not relevant and a waiver of initial AOJ review is not required as his substantive appeal was filed after February 2013. See 38 U.S.C. § 7105 (e)(1); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, § 501. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). Sensorineural hearing loss is considered an organic disease of the nervous system under § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 264 (2015). Accordingly, the regulatory provisions concerning chronic diseases and continuity of symptomatology will be considered. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 (2013). 1. Entitlement to service connection for right ear hearing loss The Veteran seeks service connection for right ear hearing loss. For the reasons that follow, the Board finds that service connection is not warranted. The Veteran has a current diagnosis of right ear sensorineural hearing loss. See, e.g., March 2016 VA examination report. Objective audiometric test results show it is of such severity that it is considered a disability for VA purposes. Id.; 38 C.F.R. § 3.385. The Veteran asserts he was exposed to in-service acoustic trauma from weapons fire while stationed in Germany. His military personnel records confirm service in Germany as an Artillery Recorder. The Board also recognizes that in-service incurrence of exposure to such acoustic trauma was conceded by the agency of original jurisdiction (AOJ). See, e.g., March 2016 SOC. The Board will not disturb that favorable finding. The Veteran provided statements attesting to a decrease in hearing acuity during active service and a continuity of symptomology therefrom. The Veteran is competent to relate such readily observable symptoms. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness). However, credibility determinations are within the purview of the Board. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran’s August 1973 separation examination documented objective test results within normal limits. The threshold for normal hearing is from 0 to 20 decibels. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Report of Medical History he completed in conjunction with that examination showed he marked “no” to hearing loss. In February 1975, less than two years after discharge from service, the Veteran applied for VA compensation benefits, complaining of defective hearing that was initially treated in September 1973. During an initial VA ear, nose, and throat examination in April 1975, no obvious defects were observed. It was recommended the Veteran undergo further audiological testing to determine the nature and severity of any hearing loss. That additional evaluation does not appear to have occurred. VA treatment records dated from July 1973 to October 1986 reflect no complaints of, or treatment for, hearing loss. The Veteran was afforded VA audiology examinations in January 2015 and in March 2016. The January 2015 VA examiner essentially determined that only the Veteran’s left ear hearing loss is at least as likely as not caused by or the result of military service noise exposure. The March 2016 examiner opined that the Veteran’s right ear hearing loss is less likely than not caused by or a result of an event in military service. The examiner explained that the hearing thresholds at the time of entrance and separation were within normal limits and according to the American college of Occupational Medicine Noise and Hearing Conservation Committee, “a noise induced hearing loss will not progress once it is stopped.” Based on this evidence, the examiner opined that the Veteran’s current right ear hearing loss is less likely than not related to military noise exposure/acoustic trauma. The pertinent inquiry is whether the current right ear hearing loss disability was caused by or is otherwise related to any incident of service, to include noise exposure. The Board finds the March 2016 VA opinion of significant probative value. This opinion was provided by an audiologist, and included consideration of the service and post-service records, the Veteran’s lay testimony, and current clinical observation. It was also supported with a rationale. There is no other competent opinion to the contrary of record. Although the Veteran may be competent to report decreased hearing acuity, he is not competent to determine the etiology of sensorineural hearing loss. This is a complex medical assessment requiring training and expertise. Thus, his lay opinion is far less reliable than the objective testing and medical opinion provided by an audiologist. As such, the VA medical opinion ultimately outweighs the Veteran’s contentions as to etiology. Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply in this case. However, to the extent the Veteran now asserts a continuity of symptomatology since service, his current statements in this regard are outweighed by the contemporaneous objective medical record and the March 2016 VA examiner’s opinion. Despite the Veteran’s statement on his February 1975 application that he was treated for hearing loss in September 1973, this was not corroborated by the objective and contemporaneous VA medical records at that time. There also is no lay report or objective evidence of continued of hearing loss symptoms since September 1973, as demonstrated by the objective and contemporaneous VA medical records dated from July 1973 through 1986. In fact, there was no demonstrable right ear hearing loss disability until many years after separation from service. In light of the normal right ear hearing threshold at separation, the Veteran’s contemporaneous report of normal hearing at that time, and VA treatment records showing no complaint of hearing loss for many years after service- the evidence is against a finding of a credible continuity of right ear hearing loss symptomatology since service or the presumptive period. Thus, service connection is not warranted based on the principles of a chronic disease or chronicity and continuity. 38 C.F.R. § 3.303(b), 3.307, 3.309. In sum, the Board places greatest probative weight on the objective evidence, and specifically the VA examiner’s opinion, which does not establish an etiological relationship between current right ear hearing loss disability and military service. As the preponderance of the evidence is against the claim, service connection for right ear hearing loss is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel