Citation Nr: 18157869 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 13-16 973 DATE: December 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not incurred during active duty, did not manifest to a compensable degree within one year of separation, and is not otherwise related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1962 to October 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015 and May 2016, the Board remanded the issue on appeal for further development. In May 2018 and August 2018, the Board requested expert medical opinions from the Veterans Health Administration (VHA), which were provided in July 2018 and September 2018. The Veteran was provided with a copy of the opinions and given 60 days to respond. See 38 C.F.R. § 20.903(a). 1. Entitlement to service connection for bilateral hearing loss. Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. Initially, the Board finds that the presumption of soundness is for application, despite the Veteran’s November 1962 enlistment examination, which shows some degree of hearing loss, bilaterally, at 500 Hertz, and in the right ear at 2000 and 4000 Hertz, when converted to ISO-ANSI standards. While the November 1962 examination report demonstrates some level of impaired hearing, it does not meet the VA’s criteria for a hearing loss disability pursuant to 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). There is no other evidence indicating the presence of a hearing loss disability prior to enlistment. Accordingly, the Board finds no clear and unmistakable evidence of a pre-existing hearing loss disability to rebut the presumption of soundness, and the Veteran is considered sound at entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the Veteran is currently diagnosed with bilateral hearing loss. See October 2015 VA examination report. Additionally, he reports acoustic trauma from repairing electronic field equipment and generator engines emitting high-pitched noise, coincident with his military occupational specialty duties, as well as noise exposure due to small arms fire and hand grenades while in basic training. In this regard, his DD Form 214 confirms that he was a manual central office repairman. The Board finds that his reports of in-service noise exposure to be credible and consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Affording him the benefit of the doubt, an injury from excessive noise exposure in service is conceded, and the first two elements of service connection are met. Regarding the last element, nexus, the only competent opinion of record is against the claim. (In this regard, the November 2011, October 2015, and June 2016 VA opinions, and the July 2018 VHA opinion against the claim are inadequate for rating purposes). Specifically, the September 2018 VHA expert, an audiologist, opined that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or related to service. In support of her opinion, the expert, who acknowledged consideration of the Veteran’s assertions of noise exposure in service and continued symptomology since that time, highlighted the fact that his hearing thresholds improved while he was in service and there was no hearing loss at service separation. She explained that a change in hearing from acoustic trauma happens in the shape of a noise notch. Therefore, per the expert, as there was no noise notch shape in relation to the Veteran’s hearing at service separation, he did not sustain physical acoustic trauma in service, and thus, the fact that the Veteran’s tinnitus is attributed to service is irrelevant. Additionally, the expert determined that hearing loss was not incurred within one year of service, explaining that because there was no hearing loss or decline in hearing at separation, a new loss would not begin that quickly. Regarding the lay statements, the expert indicated that there was insufficient evidence to show the Veteran had hearing loss at separation. Rather, the expert stated that the statements show that the Veteran likely had hearing loss by the 1980s or 2000s, given that they were written in 2011–2014 and he left service in 1965. Although one person stated that he knew the Veteran all his life and that the Veteran had hearing loss the whole time, the expert expressed that the statement did not establish a nexus to service, as it did not specify whether it was before or after service. In addressing the possibility of delayed-onset hearing loss, the expert acknowledged an Institute of Medicine (IOM) study on the subject that does not support this theory, but acknowledged per that study that “an individual’s awareness of the effects of noise on hearing may be delayed,” stating that people often do not realize they have a hearing loss. However, she emphasized that in forming her opinion she considered the actual hearing threshold data at separation, not just the lack of reported difficulty in hearing. The Board affords this medical opinion great probative value, as the VHA expert considered the Veteran’s entire relevant medical history in forming her opinion and provided thorough rationales with supporting data, as well as reasoned medical explanations. There is no competent opinion to the contrary. To the extent that the Veteran and others assert that his bilateral hearing loss is the result of active duty, the Board finds that they are not competent to do so, as the determination as to the etiology of such a disability is a complex medical question that is beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, there is no evidence that the Veteran’s hearing loss manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. Nor is there any competent evidence of an in-service manifestation of hearing loss to allow for service connection based on continuity of symptomatology. See Walker, supra. Instead, as noted above, the Veteran’s hearing improved at service separation. Accordingly, the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel