Citation Nr: 18148054 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-37 178 DATE: November 6, 2018 ORDER Entitlement to service connection for a hearing loss disability is denied. FINDING OF FACT A hearing loss disability was not manifest during active service, a sensorineural hearing loss was not manifested to a compensable degree within a year of discharge from active duty; and any current hearing loss is not otherwise etiologically related to service. CONCLUSION OF LAW A hearing loss disability was not incurred in or aggravated by active service, and a sensorineural hearing loss may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty from July 1973 to July 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran seeks entitlement to service connection for a hearing loss disability. He contends that inservice he was exposed to acoustic trauma while serving on a flight deck without proper ear protection. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection may be established on a direct basis for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air 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. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic disabilities, including a sensorineural hearing loss, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a Veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). An April 2015 VA examination report reveals evidence that the Veteran currently has a current diagnosis of hearing loss for VA purposes. 38 C.F.R. § 3.385. Additionally, the Veteran’s DD-214 shows that he served as an aviation electronics technician, a job which posed a moderate probability of noise exposure. With the probability of noise exposure and the claimant’s alleged lack of proper ear protection while on active duty, in-service exposure to acoustic trauma is conceded. Therefore, the remaining question is whether there is a nexus between service to include inservice acoustic trauma and any current hearing loss disability. Service treatment records are absent of complaints or a diagnosis of hearing loss as defined by 38 C.F.R. § 3.385. The first post-service evidence of hearing loss is the VA examination from April 2015, which was performed nearly 40 years after service separation. At that time the Veteran was diagnosed with mild to severe bilateral sensorineural hearing loss. While not dispositive of the issue of service connection, the Board may, and will, consider in its assessment the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999). As the first evidence of hearing loss was not until April 2015, there is no competent and credible evidence of compensable hearing loss within one year of service discharge. As such, the presumption of service connection does not apply. See 38 C.F.R. §§ 3.307, 3.309(a). After reviewing the claims file and examining the Veteran and his reported history, the VA examiner opined that it was less likely than not that any current hearing loss is related to service. The examiner noted that the Veteran’s audiometric results from the 1976 separation examination showed hearing that was within normal limits in the left ear and hearing within normal limits through 4000 Hertz sloping to mild hearing loss at 6000 Hertz in the right ear. Additionally, the examiner noted that the Veteran’s case file shows no test results after discharge in 1976. The Board has considered the application of the concept of continuity of symptomatology in reviewing this claim, as hearing loss is considered a "chronic disease." See 38 C.F.R. §§ 3.303 (b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While the Veteran is competent to report his symptoms, the Board finds these statements are not competent. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Moreover, treatment records show that the Veteran did not complain of or seek treatment for hearing loss until April 2015, decades after his service separation. While the Veteran reports he often has to read lips to understand conversations and that he frequently cannot hear, the Board finds it reasonable to conclude that if the Veteran had experienced chronic symptoms of decreased hearing since service, he would not have waited decades to report such symptoms to a doctor or seek medical treatment for this disorder. As such, service connection may not be granted for hearing loss based solely on lay statements. The Veteran has not produced a competent medical opinion establishing an etiological link between his hearing loss and his active service. While he is competent to report (1) symptoms observable to a layperson, e.g., decreased hearing ability or ringing in the ears; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). In sum, there is no competent medical evidence of record supporting the Veteran’s assertion that his hearing loss is etiologically related to his active service. The absence of any complaints of or treatment for these conditions in service, or for nearly 40 years after service, as well as the negative VA etiological opinion, are probative evidence against the claim for direct service connection. Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for hearing loss, and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107. The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carrie Ferrando