Citation Nr: 18157637 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-61 964 DATE: December 13, 2018 ORDER Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss was noted on entrance into service in September 1984, and is not shown to have permanently increased in severity beyond natural progression during his active service. 2. The weight of the evidence is against a finding that the Veteran’s left ear hearing loss either began during service, within one year of separation from service, or was otherwise caused by his active service CONCLUSION OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the Army from November 1981 to February 1982. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran filed his service connection claim for bilateral hearing loss in July 2015, which was denied by a November 2015 rating decision. He asserts that his bilateral hearing loss is due to his active service, which included military noise exposure. The Veteran’s military noise exposure is not at issue. For service connection to be warranted it must be shown that such military noise exposure actually caused or aggravated a hearing loss disability for VA purposes. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s STRs show that at his entrance examination in September 1981, audiological test results were: HERTZ 500 1000 2000 3000 4000 RIGHT 80 75 50 60 50 LEFT 20 25 20 20 20 In addition, he reported that he had hearing loss and the medical officer noted that the Veteran had defective hearing. In November 1981, he was given another audiological test and was assessed with normal left ear hearing and moderately severe right ear hearing loss. At his February 1982 separation interview, he did not report any change in his hearing. In October 2015, the Veteran was afforded a VA examination. Audiological test showed bilateral hearing loss for VA purposes. After reviewing the Veteran’s claim’s file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s right ear hearing loss was not affected by any military noise exposure. The examiner reported that the Veteran underwent audiological tests at his enlistment and in November 1981, and when comparing these two tests, the Veteran’s hearing loss did not appear to have been aggravated by noise. The examiner concluded that the Veteran’s right ear hearing loss was not aggravated beyond its normal progression by his active service. The examiner opined that the Veteran’s left ear hearing loss was less likely than not due to his active service. The examiner reported that the Veteran’s STRs showed normal left ear hearing loss at his enlistment and at a November 1981 audiologic test with no threshold shift. The examiner reported that there was insufficient scientific evidence for delayed onset of hearing loss secondary to military noise exposure and that hearing loss should occur at the time of exposure. The examiner reported that the available anatomical and physiologic evidence suggested that delayed post exposure noise exposure induced hearing loss was not likely. Regarding the Veteran’s right ear hearing loss, the Veteran’s September 1981 service entrance examination revealed that he had a right ear hearing loss disability by VA standards at that time. Such evidence establishes that right ear hearing loss preexisted the Veteran’s active service, and as such, he is not entitled to a presumption of soundness on entry. The preexistence of the disability precludes consideration of whether it was incurred in service. To establish service connection for right ear hearing loss, VA must show that the Veteran’s preexisting right ear hearing loss was not aggravated by his active service. Whether a disability increased in severity is determined by reviewing the evidence regarding the state of the disability before, during, and after active duty service. In large measure the significance of the various findings (i.e., whether they reflect a permanent increase in the level of severity/underlying pathology of the disability or merely reflect an acute exacerbation) is a medical question. Here, not only is there no medical evidence during the Veteran’s active service showing an increase in severity of the Veteran’s right ear hearing loss, but there is also no competent medical evidence suggesting that the Veteran’s preexisting right ear hearing loss increased in severity during, or as a result of, his active service. The October 2015 VA examiner reported that the Veteran’s STRs at his entrance audiological test and November 1981 audiological test did not show aggravation by noise. As such, the Veteran’s right ear hearing loss, which preexisted his active service, was not aggravated beyond the normal progression in service. After weighing all the evidence, the Board finds the greatest probative value in the October 2015 VA examiner’s opinion. This opinion was based on a complete review of the Veteran’s medical history, as well as a physical examination of the Veteran, and contains an explanation for the rationale of his opinion. Notably, there are no other competent medical opinions to the contrary. Regarding the Veteran’s left ear hearing loss, it is not disputed that he now has hearing loss for VA purposes. Even if the Veteran experienced military noise exposure during his military service, military noise exposure alone is not considered to be a disability. When hearing loss is first documented more than a year after service separation, it must be shown that the hearing loss was caused by the military noise exposure. As with the right ear hearing loss claim, the Board finds the greatest probative value in the October 2015 VA examiner’s opinion. The Veteran has not submitted any evidence, beyond his own assertions, showing that his left ear hearing loss was due to his military service. Consideration has been given to the Veteran’s assertion that his bilateral hearing loss was due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report difficulty hearing, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating audiological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value in the determination of the etiology of the Veteran’s bilateral hearing loss. Accordingly, the criteria for service connection for bilateral hearing loss have not been met, and the Veteran’s claim is denied. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel