Citation Nr: 18150289 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 17-04 235 DATE: November 15, 2018 ORDER Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran does not have a legally cognizable hearing loss disability of the right ear. 2. Sensorineural hearing loss in the left ear did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. CONCLUSION OF LAW The criteria for an award of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from October 1987 to October 1991. He also had service in a reserve component of the military. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Entitlement to service connection for bilateral hearing loss. The Veteran seeks to establish service connection for bilateral hearing loss. He says that he was exposed to excessive noise during active duty in his role as a fire protection specialist, to include from jet engine aircraft, vehicles, and audible warning devices. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including sensorineural hearing loss—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Right ear hearing loss. As to Veteran’s claim for service connection for right ear hearing loss, the evidence of record shows that he underwent VA audiometric testing of that ear in November 2015. He was found to have puretone thresholds of 5, 5, 5, 15, and 20 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, and a right ear speech discrimination (Maryland CNC) score of 100 percent. There is nothing to suggest that the Veteran’s right ear auditory acuity has decreased since the time of the testing in November 2015 so as to warrant re-examination, and no other audiometric evidence has been received in connection with his claim for benefits. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against the Veteran’s claim for service connection for right ear hearing loss. Simply put, the evidence does not establish that he has ever had a hearing loss disability of the right ear—either presently or at any time in the past—as defined by VA regulation. 38 C.F.R. § 3.385. In arriving at this conclusion, the Board observes that the Veteran is competent to offer statements with respect to symptoms of diminished hearing. However, the diagnosis of a hearing “disability,” as VA defines that term, is a medically complex matter requiring the administration and interpretation of audiometric test results. Inasmuch as the Veteran is not shown to have the requisite medical knowledge, he is not competent to render a diagnosis. Accordingly, and because the competent evidence of record does not otherwise establish the presence of a right ear hearing loss disability, the claim must be denied. 2. Left ear hearing loss. Turning to the Veteran’s claim for service connection for left ear hearing loss, there is no dispute that the Veteran has a current left ear hearing loss disability as defined by VA. The report of the November 2015 VA audiometric examination clearly reflects, among other things, that he had an auditory threshold of 40 decibels in the left ear at 4000 Hertz. Nor is there any real dispute that the Veteran was exposed to hazardous noise during service. The record clearly reflects that his military occupational specialty (MOS) was fire protection specialist. He has stated that he was exposed to excessive noise in that role—to include from jet engine aircraft, vehicles, and audible warning devices—and his statements in that regard are wholly consistent with the circumstances and conditions of his service. As to the nexus, or link, between the Veteran’s currently shown disability and service, the Board notes that although his service treatment records reflect that he underwent many audiometric examinations during service, they do not reflect that he ever had a hearing loss disability in the left ear, as set out in 38 C.F.R. § 3.385. Nor does the evidence reflect that a hearing loss disability of that ear became manifest to a compensable degree within a year of his separation from service. The Veteran underwent a VA audiology examination in November 2015. After examining the Veteran, conducting audiometric and speech discrimination testing, and reviewing the claims file, the examiner concluded that it was less likely than not (less than 50 percent probable) that the Veteran’s left ear hearing loss disability was the result of military service. In support of his opinion, the examiner observed, in pertinent part, that there were no significant threshold shifts during service (comparing reports of audiometric testing dated in January 1987, June 1993, and December 2009). The Board finds this opinion probative. To the extent the Veteran is asserting that there is a relationship between his left ear hearing loss and service, the evidence does not reflect that he has the medical training or expertise necessary to offer opinions with respect to medically complex questions relating to the etiology of a hearing loss disability. The only medical opinion on the matter—the November 2015 VA opinion—is uncontradicted on the record. Moreover, the Veteran has not alleged that his symptoms of decreased hearing in the left ear have been continuous since service. In sum, based on the record, the Veteran’s left ear hearing loss did not manifest during service or within a year of his separation from service, and the evidence of record does not otherwise establish that the disability is related to service. As the preponderance of the evidence is against the claim, the claim must be denied. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel