Citation Nr: 18149896 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-15 518 DATE: November 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have left ear hearing loss for VA purposes; the Veteran’s right ear hearing loss is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5017 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in January 2017. A transcript of the hearing is of record. Entitlement to service connection for bilateral hearing loss A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.303 (b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309 (a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran asserts that his bilateral hearing loss was caused by service. The Veteran’s DD 214 shows that his military occupational specialty (MOS) was aircraft mechanic. Thus, the Board concedes noise exposure in service. Service treatment records are silent for complaints, treatment, or diagnosis of a hearing condition. It was noted that the Veteran had ear infections as a kid. In a January 2011 VA examination, the Veteran stated that he had an ear infection with complications of pneumonia when he was 4 years old. This resulted in barometric chamber treatment and myrengotomies. He denied temporary/sudden hearing loss in service. After service, he worked in heating and cooling for over 20 years and hearing protection was only used in high noise levels, but not required. Recreationally, he went deer hunting sometimes. Upon examination, puretone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 15 5 30 30 30 LEFT 20 15 25 25 25 Speech recognition scores were 94 percent in each ear. The examiner stated that an opinion could not be provided because the claims file could not be reviewed. The examiner stated that the degree of hearing loss was very slight to mild right and within normal limits left, and was not consistent with noise induced type hearing loss. The examiner further stated that the hearing loss was very consistent with age-related changes. The Veteran’s hearing loss for both ears showed conductive components, consistent with history of ear infection and pneumonia at age 4 with scarring ear drums. The examiner noted that the Veteran did not report any ringing, buzzing, hissing ear noises, or head noise. In a July 2011 statement, the Veteran stated that his bilateral hearing loss was caused by service because he served on the flight line. In a November 2012 clarifying VA opinion, it was noted that the claims file was reviewed. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran entered military service with normal hearing bilaterally, per puretone thresholds. The examiner stated that it should be noted that the left ear showed some low frequency depressed thresholds, most likely due to history of childhood ear infections, as reported on his VA examination in 2011. The examiner further stated that the Veteran exited military service with normal bilateral hearing. The entrance and exit examinations were compared and there was no standard threshold shift noted for either ear. The hearing conservation examinations reviewed did show a slight temporary shift in hearing for the right ear at 2000 Hz and the left ear at 6000 Hz, but not permanent as observed from the separation examination. The examiner noted that the service treatment records were silent for complaint of hearing loss. The service treatment records showed no hearing loss and no aggravated condition that was permanent. The examiner reviewed the Veteran’s hearing loss from 2011 and noted that the examiner opined that hearing loss was not noise induced and more consistent with age related changes. The examiner continued to agree with this opinion. The examiner concluded that noise exposure was conceded for the Veteran but no permanent changes in hearing was noted at the exit examination. Bilateral hearing loss was not caused by service. At the January 2017 Board hearing, the Veteran testified that he felt his hearing loss started in boot camp. He stated that following boot camp, he was assigned to different air fields and was provided hearing protection, but that a lot of small spaces did not accommodate the “big muff ear […] protectors” that were supplied, and that they were not always used. He then testified that he did not notice any hearing problems until around 2009 when he was working. He noted that his job following service in heating and cooling had the most noise exposure when he was working on a rooftop. He stated he wore his earplugs. The Veteran further stated that he had ear infections when he was younger and at one point had tubes placed in his ears to equalize the pressure. Finally, he indicated that he did not seek treatment until 2009 because he did not have insurance. As to the Veteran’s left ear, the January 2011 VA examination did not show that the Veteran has left ear hearing loss for VA purposes. The Veteran is competent to testify as to facts he personally observed or described. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran has hearing loss for VA purposes cannot be determined by mere observation alone. This requires specialized training. The Board finds that determining the etiology of the Veteran’s hearing symptoms is not within the realm of knowledge of a non-expert, and concludes that his opinion in this regard is not competent evidence and, therefore, not probative of whether he has hearing loss for VA purposes. Regarding the right ear, the Veteran has right ear hearing loss for VA purposes. As stated above, because the Veteran’s MOS was aircraft mechanic, the Board concedes exposure to hazardous noise in the performance of the Veteran’s duties. As such, the crux of this case centers on whether the Veteran’s right ear hearing loss was attributable to his service. However, as noted above, the medical opinions of record do not support that the Veteran’s right ear hearing loss was caused by service. Instead, the hearing loss was attributed to age and it was noted that the Veteran had ear infections as a child. The Board also notes that the Veteran was exposed to hazardous noise following service, not only occupationally as working in heating and cooling, but also recreationally. Based on a review of the evidence, the Board concludes that service connection for bilateral hearing loss is denied. Although the Veteran had in-service noise exposure, the evidence as discussed above fails to show that the Veteran’s left ear hearing loss has met VA’s definition of a hearing loss disability during this appeal. In addition, although the right ear meets VA standard for hearing loss, the evidence of record weighs against a finding that the Veteran’s right ear hearing loss is related to service. While the Board acknowledges the Veteran’s belief that his hearing loss is related to service, the Board finds that he is not competent to establish that any hearing loss disability was caused by in-service noise exposure, as the etiology of hearing loss is a complex matter outside the knowledge of lay persons. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). (Continued on the next page)   The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel