Citation Nr: 18147362 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 15-33 801 DATE: November 6, 2018 ORDER Entitlement to service connection for hearing loss is denied. FINDING OF FACT The Veteran’s hearing loss is not related to service. CONCLUSION OF LAW The criteria for service connection for hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the Army from September 1969 to March 1970, and subsequently continued serving in the Army Reserves until September 1975. This appeal comes to the Board from a January 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran withdrew an initial request for a hearing. The Veteran contends that his hearing loss was due to noise exposure from grenades, M-16s, and M1s during basic training and his service in the Army Reserves. The Veteran’s MOS was as a light vehicle driver. He also achieved a designation as an expert rifleman (M-16). He asserts he has had minimal noise exposure since service. Entitlement to service connection for hearing loss Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is considered a qualifying organic disease of the nervous system within the definition of 38 C.F.R. § 3.309(a). For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The Board notes that the Veteran’s most recent examination results provide a diagnosis of sensorineural hearing loss in both ears under the above metrics. Shedden element one is thus met. The Board additionally concedes in-service noise exposure due to the Veteran’s MOS and expert rifleman status. Shedden element two is therefore also satisfied. However, the Board finds there is not a sufficient nexus between the in-service noise exposure and his current diagnosis of hearing loss. The Veteran’s service treatment records are absent of complaints or treatment for bilateral hearing loss. His September 1969 enlistment examination showed mild hearing loss in the right ear at 4000Hz, which did not appear to worsen during service. Indeed, his hearing showed better upon separation. The left ear consistently showed within normal limits. Those results are as follows: Enlistment Exam (1969): Frequency (Hz) 500 1000 2000 3000 4000 Right 5 0 0 - 35 Left 5 0 0 - 10 Separation Exam (1975): Frequency (Hz) 500 1000 2000 3000 4000 Right 5 0 0 - 25 Left 5 0 0 - 20 A VA examination was conducted in January 2014, at which time the VA examiner reported they were unable to obtain conclusive results because the Veteran was “uncooperative”. The Veteran contends that he was trying to be cooperative, and because these results were inconclusive appealed for another examination. Another VA examination was given in August 2015. At that time, the VA examiner found that there was hearing loss to a VA compensable level bilaterally. However, after reviewing those results and the Veteran’s service records, the examiner opined that, considering the Veteran’s normal discharge audiometric results, the amount of time elapsed since service, and the absence of complaints of hearing loss in the intervening period, it is less likely than not that the Veteran’s hearing loss was caused by or aggravated beyond the normal progression in service. The Veteran also submitted a private treatment record dated January 2015 which reflected his current hearing loss. However, this examination makes no assertions as to the etiology of the condition. Consequently, while this evidence is competent and credible, more probative weight will be given to the results of the VA examination as to etiology. The Board finds that the most probative medical evidence—the August 2015 VA examination—does not support a finding that the Veteran’s currently diagnosed hearing loss is related to acoustic trauma experienced while in service. The Veteran has not provided any evidence to the contrary. Consequently, the Board concludes the third element of service connection is not met under Shedden. As noted above, the Veteran attributes his hearing loss to his in-service noise exposure, and reports little to no noise exposure since service. While the Veteran is competent and credible to testify as to his exposure to acoustic trauma, he is not competent to provide a nexus opinion in this case because this is not a type of disability for which lay evidence is competent. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Additionally, the Board concludes that, while the Veteran has diagnosed bilateral sensorineural hearing loss, which is a qualifying chronic disease under 38 C.F.R. § 3.309(a), the condition did not manifest to a compensable degree in service or within a presumptive period. 38 C.F.R. §§ 3.307, 3.309(a). VA treatment records do not reflect a diagnosis of bilateral sensorineural hearing loss until his VA examination in July 2014. This is over 40 years after his separation from service. Finally, there is no evidence suggesting the Veteran suffered from hearing loss in the intervening period sufficient to support a finding of continuity of symptomatology under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). In summary, the preponderance of the probative evidence is against finding that the Veteran’s bilateral hearing loss is etiologically related to his period of active service. As the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for bilateral hearing loss is therefore denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Stuedemann, Associate Counsel