Citation Nr: 18155907 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-60 230 DATE: December 6, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The evidence does not show that the Veteran’s current bilateral hearing loss manifested during active service or to a compensable degree within one year of separation from active service, or that the bilateral hearing loss is at least as likely as not etiologically related to his active service, to include in-service exposure to noise. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (b); 38 C.F.R. §§ 3.159 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to December 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 1. Entitlement to Service Connection for Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss that is related to in-service noise exposure. Specifically, the Veteran stated that during service he maintained electronic navigational aids and equipment that were located on airfields and in close proximity to the runways and taxiways. See VA Form 21-4138, Statement in Support of Claim, received December 2015. Service connection may be established for 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. To establish service connection for a disability on a direct-incurrent 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). See also 38 C.F.R. § 3.303. Certain chronic diseases, to include organic diseases of the nervous system such as hearing loss, will be presumed related to service if they were noted as chronic in service; if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a). A hearing loss disability for VA purposes means that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board will also consider whether the Veteran’s bilateral hearing loss, as a chronic disease, manifested during service or within one year of separation from active service. The Board concludes that, although the Veteran has current bilateral hearing loss disability for VA purposes, and the Veteran is considered credible in his reports of in-service noise exposure, the preponderance of the probative evidence weighs against finding that the Veteran’s bilateral hearing loss began during service or within one year of separation from service, or that it is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s February 1971 report of medical examination for entrance into active service reflects the following audiometric findings in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 10 10 5 LEFT 20 15 5 5 10 An August 1974 report of medical examination for separation from active service reflects the following audiometric findings in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 15 LEFT 25 20 10 10 10 A comparison between the separation audiometric findings and the entrance audiometric findings reveals that the Veteran’s puretone thresholds increased or remained the same at several frequencies. Most notably, the Veteran had a 15 dB threshold increase at 1000 Hz in the right ear and a 5 dB threshold increase in the bilateral ears at several other frequencies. The service treatment records do not show complaint of or treatment for hearing loss or tinnitus. The earliest test results reflecting a hearing loss disability for VA purposes are dated in October 2015, over four decades from his separation from active service. Although the Veteran is competent to report having experienced symptoms of loss in hearing acuity during service, he is not considered competent to provide a diagnosis of hearing loss or to medically attribute his current bilateral hearing loss to a particular cause, such as in-service noise exposure. The issue is medically complex, and it requires knowledge and expertise the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, to determine whether the Veteran’s current bilateral hearing loss is etiologically related to his active service, the Board turns to the competent evidence of record, which in this case is comprised of the March 2017 VA examiner’s opinion. The March 2017 VA examiner noted the Veteran’s reports of in-service exposure to noise from aircraft. The VA examiner further noted that the Veteran’s bilateral hearing thresholds were within normal limits at separation. Additionally, the examiner noted that there was one significant shift in the right ear in the low frequencies; however, the VA examiner stated that a hallmark of noise-induced hearing loss is the appearance of hearing loss for high frequency sounds. The VA examiner noted there were no threshold shifts at the high frequency regions for either ear at separation. The March 2017 VA examiner further noted that the Veteran reported that he continued to do the same type of work he performed during service for thirty years after his separation from active service. The Veteran reported that he did not wear hearing protection devices for those thirty years of flight line noise. Additionally, the Veteran reported that he was a hunter and shot his weapons without the use of hearing protection devices. Thus, the VA examiner opined that the Veteran’s current bilateral hearing loss is due to significant occupational and recreational noise exposure following military service. The March 2017 VA examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board accepts the examiner’s opinion as probative evidence that it is less likely than not that the Veteran’s bilateral hearing loss is etiologically related to his active service, to include in-service noise exposure. Although the Veteran was exposed to loud noises in service, the subsequent separation examination shows normal hearing and therefore verifies that permanent hearing loss did not occur following the in-service noise exposure. The Board has also considered whether the Veteran is entitled to service connection for bilateral hearing loss as a “chronic disease.” See 38 C.F.R. § 3.303(b). Organic diseases of the nervous system are included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the earliest evidence of bilateral hearing loss is October 2015, forty years after his separation from active service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with bilateral hearing loss during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. In summary, the most probative evidence of record, which in this case consists of the March 2017 VA examiner’s opinion, does not show that the Veteran’s current bilateral hearing loss manifested during his active service or to a compensable degree within one year of separation from active service, or that the bilateral hearing loss is at least as likely as not etiologically related to his active service, to include in-service exposure to noise. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for bilateral hearing loss. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel