Citation Nr: 18159093 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-04 101 DATE: December 18, 2018 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown to have occurred in service, did not manifest for several years thereafter, and has not been related to service by competent evidence. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to September 1970. This matter is on appeal from a February 2012 rating decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Hearing loss, if sensorineural in nature, and tinnitus, if due to acoustic trauma, are considered a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). 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, 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. The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between a veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). It is the Veteran’s contention that he sustained hearing loss as a direct result of his military service. He specifically asserts that he was exposed to hazardous sounds such as grenade explosions while he was aboard the USS Mark AKL 12. Service treatment records are silent for complaints of hearing loss. The Veteran separated from service in 1970, but there were no complaints of hearing problems voiced for several decades thereafter. VA treatment records in May 2011 noted that the Veteran complained of gradual hearing loss which was noticed more by others rather than himself. After testing, the VA physician indicated that the results were consistent with aging and noise-induced cochlear pathology. There was no indication of external, middle or retrocochlear ear disease. He was diagnosed with bilateral sensorineural hearing loss. Shortly after, the Veteran was afforded a VA examination in June 2011. There, the Veteran told the VA examiner that his hearing loss existed since 1970. He reported firing weapons without use of any hearing protection. Upon examination, his puretone thresholds in decibels are as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 25 30 25 LEFT 25 25 25 35 The speech recognition score was 84 percent in the right ear and 78 percent in the left ear. The puretone threshold average was 27.5 decibels in both ears. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss, but since the only audiometric record in 2011 showed mild hearing loss and prior records were unavailable for review, a nexus could not be established. Of note, the Veteran met the criteria for hearing loss for VA purposes by virtue of the speech recognition testing, as the audiometric testing did not show hearing loss for VA purposes in either ear. The Veteran was afforded another VA examination in February 2012. Audiometric testing revealed no changes in puretone threshold and speech discrimination scores from the June 2011 VA examination. After review of the record, the VA examiner opined that the Veteran’s bilateral hearing loss was less likely related to his military service. The examiner explained that based on the June 2011 examination report and all available documentation, the Veteran’s bilateral sensorineural hearing loss could not be corroborated as having occurred during service. The examiner noted that the Veteran’s service treatment records cited normal hearing. Additionally, the first documentation of hearing loss is 40 years after his discharge. In April 2016, the Veteran was afforded another VA audiological evaluation. There, his puretone threshold in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 40 55 55 LEFT 50 55 60 70 The speech recognition score was 88 percent in the right ear and 84 percent in the left ear. The puretone threshold average is 49 decibels in the right ear and 59 decibels in the left ear. The VA examiner opined that while the Veteran clearly has hearing loss, it is less likely related to his military service. Given the Veteran’s service treatment records, the Veteran had normal hearing upon entry and exit from his service. The examiner specifically noted that the Veteran admits to suffering from hypertension, hyperlipidemia, cardiovascular disease with bypass surgery. These metabolic conditions have hearing loss as a co-morbidity. The Veteran also has a family history hearing loss. It was also noted that the Veteran is 67 years old. The examiner indicated that 30 percent of people over the age of 65 years have age related hearing loss. Thus, given the lack of hearing loss in service and many years after his service, the condition is less likely than not related to his military service. The April 2016 VA examination report has not been challenged or undermined by any competent evidence. Here, the record does not contain evidence supporting a nexus between the Veteran’s hearing loss and his service besides the Veteran’s own testimony. However, while the Veteran is considered competent to describe his perception of diminished hearing acuity because lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, he is not considered competent to offer an opinion concerning the etiology of his hearing loss because such question is not amenable to lay observation alone and is too complex to be addressed by the Veteran. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, any allegation of diminished hearing acuity would be undercut by the fact that audiometric testing at separation failed to show hearing loss in either ear. While the evidence of record currently shows bilateral hearing loss, it lacks objective evidence supporting a positive nexus. Therefore, the criteria for service connection have not been met, and the Veteran’s claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel