Citation Nr: 18148480 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-50 459 DATE: November 8, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and his bilateral hearing loss is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from January 1976 to March 1978. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, 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” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). 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. In addition to the legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that service connection is warranted for his bilateral hearing loss. The Veteran contends in service working as a rifleman he was exposed to loud noise from equipment and weapons firing, and was not given hearing protection and this exposure caused his current hearing loss. The Veteran reports currently using hearing aids, and having ongoing difficulty hearing others. The Veteran is competent to describe his ongoing symptoms and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The questions for the Board are whether the Veteran has a current bilateral hearing loss disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service or began during service, or if his current bilateral hearing loss is at least as likely as not related to service. The Veteran has a diagnosis of bilateral sensorineural hearing loss. The Veteran contends that in-service he was exposed to hazardous noise which resulted in his current hearing loss. The Veteran’s DD 214 notes his military occupational specialty (MOS) was a rifleman. The Veteran’s service treatment records (STRs) have been associated with the claims file. At entrance on the authorized audiological evaluation in January 1976 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 x 15 LEFT 20 5 0 x 0 Treatment records in January 1976 note the Veteran was issued large ear plugs. An August 1976 audiological evaluation noted, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 x 15 LEFT 20 5 0 x 0 At separation audiometric findings were not completed. In light of the Veteran’s consistent statements and the evidence of record, including in-service noise exposure there is credible evidence indicating an in-service injury or disease satisfied. As such, the Board concedes in-service noise exposure. See 38 U.S.C. § 1154; 38 C.F.R. § 3.303(a). The issue is whether the Veteran’s current bilateral hearing loss began during service or is related to service. The Veteran was afforded a VA examination in February 2014. On the authorized audiological evaluation in February 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 70 65 55 LEFT 25 30 55 55 60 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 98 percent in the left ear. The examiner noted bilateral sensorineural hearing loss. The examiner noted the Veteran’s current hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran’s reported occupational noise exposure after service working as a dockworker and a cabinet maker for 30 years. The examiner noted the Veteran’s in-service exposure to hazardous noise and weapons discharged. However, the examiner attributed the Veteran’s current hearing loss to his occupational noise exposure post-service. The examiner noted an absence of reports of hearing loss or tinnitus in-service. While the examiner considered the Veteran’s reports of hazardous noise exposure in-service he found it was less likely than not that his current hearing loss was caused by noise exposure or acoustic trauma during service. VA treatment records note the Veteran has been seen for ongoing follow-up and maintenance of his hearing aids. VA treatment records note the Veteran was treated for sensorineural hearing loss and first issued hearing aids in 2006 and reported difficulty hearing with a history of noise exposure in-service and ongoing occupational noise exposure. VA treatment records associated with the claims file do not contradict the VA examination and are absent indications of a relationship between the Veteran’s hearing loss and in-service noise exposure. The Veteran’s representative in November 2016 correspondence contends that service connection is warranted as his current hearing loss is due to his in-service duties as an automatic rifleman and the corresponding noise exposure. The representative further asserts that the Veteran’s current hearing loss is not attributed to vocational noise exposure post-service. The Board notes the February 2014 VA examiner reviewed the Veteran’s exposure to noise both during and post-service. However, the issue before the Board is whether the Veteran’s current hearing loss is attributable to service. VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran’s representative is not competent to provide a medical opinion, which it has attempted to do in its argument. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran’s claim that does little more than suggest a possibility that his illnesses might have been caused by service is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for bilateral hearing loss is warranted. The Board concludes that service connection is not warranted as the Veteran’s current bilateral hearing loss did not began during service and is not attributable to service. The Veteran’s statements regarding his current symptoms and in-service events are credible. While the Veteran reports his current symptoms of hearing loss are related to service and his duties in-service, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The Veteran reported never having received ear protection although service records show that devices were issued in recruit training and likely were available on training ranges in the 1970s. The Board gives more probative weight to the competent medical evidence, specifically the February 2014 VA examination, which found the Veteran’s current hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran’s in-service exposure to hazardous noise and arms discharged while serving as a rifleman. However, the examiner attributed the Veteran’s current hearing loss to his occupational exposure post-service, working as a dockworker and cabinet maker for 30 years. While the examiner considered the Veteran’s reports of hazardous noise exposure in-service he found that it was less likely than not that his current hearing loss was caused by noise exposure or acoustic trauma during service. Service records do not support an onset of hearing loss during active service. In addition, the Board has considered the Veteran’s lay statements however, the Board gives more probative weight to the competent medical evidence specifically the February 2014 VA examination. In addition, the Board concludes that, while the Veteran has bilateral hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. A bilateral hearing loss disability was not “noted” during service or within one year of separation. See Walker, 708 F.3d 1331. An audiogram in August 1967 noted hearing within normal limits. The Veteran indicated in-service he was subjected to hazardous noise working as a rifleman, and as noted above hazardous noise exposure has been conceded. See 38 U.S.C. § 1154; 38 C.F.R. § 3.303(a). However, based on the probative evidence of record the Board finds that the Veteran’s bilateral hearing loss did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. VA treatment records note the Veteran was not diagnosed with hearing loss until 2006 and reported both military and occupational noise exposure, and was issued hearing aids. This was decades after his separation from service and decades outside of the applicable presumptive period. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. As such, the Board finds that service connection for a bilateral hearing loss disability is not warranted. 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 v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian