Citation Nr: 18148740 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-15 352A DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability 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. §§ 1110, 1112, 1113, 1131, 1137, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1971 to July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board observes that the Veteran did not submit a timely VA Form 9, substantive appeal, as required by applicable regulations. Rather, an informal substantive appeal was received in April 2016. In this regard, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), 38 C.F.R. § 20.202 (2017). However, because the RO treated the informal substantive appeal as timely, the Board will accept jurisdiction. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (discussing actions which may constitute a waiver of the requirement for filing a timely substantive appeal). In August 2016 correspondence, the Veteran requested a hearing before a member of the Board. However, in August 2018 correspondence, the Veteran withdrew his hearing request. 38 C.F.R. § 20.702 (e) (2017). Accordingly, the Veteran’s hearing request is deemed withdrawn and the Board will proceed with appellate review. 1. Entitlement to service connection for bilateral hearing loss The Veteran believes he has bilateral hearing loss which is related to his active service. In this regard, in a June 2014 notice of disagreement, the Veteran reported he believed his hearing loss was due to in-service flight line noise exposure, including during an almost one year period when he was stationed at Udorn, Thailand, and that he worked on F4 airplanes most of the three out of four years of his service. Similarly, in a June 2014 statement, the Veteran reported, in part, his Air Force career was carried out totally on the flight line both stateside and overseas, he had not been exposed to that magnitude of noise level since then, and there was really no other explanation as to why he would be suffering this premature loss. In an August 2018 statement, the Veteran stated his entire working career was spent with the federal government and his hearing loss was incurred during this time period. He further stated that his records, military and his federal job description, showed he was around very high levels of noise. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The question for the Board is whether the Veteran has bilateral hearing loss that manifested to a compensable degree in service, within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether it is etiologically related to an in-service injury, event, or disease. In this regard, August 2016 audiometric testing demonstrated the Veteran has hearing loss “disability” for VA purposes under the provisions of 38 C.F.R. § 3.385 for each ear. The Board concludes that, while the Veteran has bilateral hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) as an organic disease of the nervous system, it did not manifest to a compensable degree within the presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Specifically, a May 1975 in-service examination, conducted in conjunction with the Veteran’s separation from service, found in pertinent part, the Veteran’s hearing in each ear was clinically normal upon examination. Furthermore, the Veteran has not reported his hearing difficulty onset during service and continued after service, or that it onset within one year after separation from service. In fact, conversely, the first medical evidence documenting the Veteran’s complaints of hearing loss was in a December 2013 VA treatment record which noted the Veteran was a biomedical employee that worked around noisy pumps that had been removed and thus requested an evaluation for hearing loss due to noise exposure. Thereafter, a January 2014 VA treatment record documented that the Veteran reported a gradual decline in hearing sensitivity in both ears and that he reported a history of noise exposure from jet engines in the military and post-service occupational noise exposure from generators. Further, while January 2014 audiometric testing demonstrated hearing loss for VA purposes for the right ear, hearing loss for VA purposes was not demonstrated at that time for the left ear. Moreover, as alluded to above, the evidence reflects post service occupational noise exposure around noisy pumps or generators. In this regard, described above, in an August 2018 statement, the Veteran in part, reported his federal job description, albeit along with his military service records, showed he was around very high levels of noise. Thus, the evidence reflects the Veteran’s hearing loss onset decades after his separation from service and decades outside of the applicable presumptive period, with evidence of intercurrent post-service occupational noise exposure. Service connection for bilateral hearing loss may still be granted on a nonpresumptive direct-incurrence basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s bilateral hearing loss and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In this regard, the August 2016 VA examiner opined that neither the Veteran’s right ear hearing loss or left ear hearing loss was at least as likely as not caused by or a result of an event in military service. In support of such, the August 2016 VA examiner explained the Veteran showed normal bilateral hearing ability on both military entrance and separation hearing tests with no significant threshold increases during service. However, the lack of any evidence showing the Veteran had hearing loss during service is not fatal to his claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Although the August 2016 VA examiner’s opinion was based, in part, on hearing acuity being clinically normal when the Veteran separated from service, such does not render the opinion inadequate because the examiner took into account the Veteran’s lay statements and reviewed the available service treatment records. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (medical opinion is adequate if it takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Further, the August 2016 VA examiner explained the reasons for his conclusions based review of the record with consideration of the Veteran’s subjective complaints. Thus, the August 2016 VA examiner’s opinion is entitled to substantial probative weight. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). In June 2014, the Veteran submitted article from VA’s website regarding Thailand military bases and Agent Orange exposure. However, this document does not reference hearing loss. Additionally, in a June 2014 statement, the Veteran reported, in part, that when he explained his past to his physician and the audiologist, they believed it was highly possible and probable that his hearing loss was due to his past military service. However, to the extent the Veteran proffers this information as a positive nexus between his bilateral hearing loss and service, the Board finds that a layperson’s account of what medical providers purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). While the Veteran believes his bilateral hearing loss is related to in-service noise exposure, he has not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, specifically the August 2016 VA examiner’s findings and opinion. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for bilateral hearing loss. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel