Citation Nr: 18147824 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-32 429 DATE: November 6, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1956 to May 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. A transcript of the hearing is associated with the electronic claims file. Service Connection Generally, to establish service connection a Veteran 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease 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). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, 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, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, 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). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means 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. Id. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be 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. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for bilateral hearing loss. Beginning with direct service connection, the Veteran currently has hearing loss for VA purposes, and therefore a current disability has been established and the first element is met. 38 C.F.R. § 3.385. Concerning the second element, the Veteran has alleged that his hearing loss is due to noise exposure while he was serving in the Air Force. The Veteran’s military occupational specialty was that of a wire and antenna maintenance technician, and he testified that the noise from airplanes, banging on poles and towers, and banging “down in the hole” while he was putting up radio tower equipment caused his hearing loss. Based on this evidence VA previously conceded noise exposure in the August 2015 statement of the case. Therefore, an in-service event, injury, or disease has been shown. With respect to the third element, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss is causally related to service. The Veteran has reported that his hearing loss is related to service. While competent to report the persistence of lay observable symptoms, such as difficulty hearing, the Veteran is not competent to state an opinion as to whether his hearing loss is causally related to active duty service, as to do so requires expertise in the field of audiology. Jandreau, 492 F.3d 1372. Further, to the extent the Veteran has indicated that he has experienced persistent hearing loss since service, such a finding is inconsistent with the record. Specifically, the Veteran filed his first application for service connection back in June 1973, less than a month after separation from service, however he did not include a claim for bilateral hearing loss. Instead, during a November 1973 VA examination for unrelated issues, the examiner noted that the Veteran’s external ear canals were covered with some cerumen, but his drums were normal and he had no hearing loss. Treatment records from July 1994 also show a finding that the Veteran’s hearing was “close to normal, if not normal” and in September 1998 the Veteran was issued a medical examiner’s certificate qualifying him pursuant to the federal motor carrier safety regulations with no need for hearing aids. Thus, the Veteran’s current recollections are undermined by earlier evidence and therefore cannot be deemed probative to establish the existence of persistent symptoms since service. It should be noted that the first diagnosis of hearing loss in the record is from April 2000 wherein the Veteran’s hearing loss was found to be symmetrical and probably noise related. However, the Veteran did not file for service connection for bilateral hearing loss until May 2012 and was given an August 2012 VA examination. The examiner opined that the Veteran’s hearing loss was less likely than not related to service because the Veteran had normal hearing thresholds at separation from service and the onset of his hearing loss was reported to be decades after separation. The Board finds this opinion to be well reasoned and entitled to significant weight. Moreover, during his video hearing, the Veteran testified to working for an outhouse business pumping toilets and as a truck driver following service. The Veteran admitted that both of these jobs had regular noise exposure, but alleged that the noise was not as loud or as consistent as the noise exposure he faced while serving in the Air Force. Nevertheless, the Veteran’s service treatment records do not show any complaints of hearing loss during or immediately following service. Based on the competent and credible evidence of record, the preponderance of the evidence is against a finding of a nexus between the Veteran’s bilateral hearing loss and his active duty service. As the third element is not met, service connection for bilateral hearing loss on a direct basis is not warranted in this case. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with bilateral sensorineural hearing loss, which is encompassed by the boarder term “organic diseases of the nervous systems,” and is therefore a recognized chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, the preponderance of the evidence is against a finding of in-service hearing loss manifested to a sufficient degree so as to identify the disease or manifestation to a compensable level in the first post-service year. Service treatment records are silent for a diagnosis of bilateral hearing loss at 500 to 4000 hertz or complaints of symptoms thereof. At the Veteran’s September 1972 retirement examination his hearing was not found to be impaired for VA purposes. 38 C.F.R. § 3.385. Moreover, as noted above, the Veteran’s first diagnosis of hearing loss was made in April 2000, nearly 28 years following separation. As there is no persuasive evidence of manifestation in-service or within the first post-service year, service connection for bilateral hearing loss based on the presumption in favor of chronic disease or continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Although the Veteran has established a current disability and an in-service event, injury or disease, the preponderance of the evidence weighs against a finding that the Veteran’s bilateral hearing loss is causally related to his service or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55–57; 38 C.F.R. § 3.102. For these reasons, entitlement to service connection for bilateral hearing loss is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel