Citation Nr: 18159179 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-04 685A DATE: December 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss 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 Veteran’s bilateral hearing loss disability was not incurred in or aggravated by active service and sensorineural bilateral hearing loss may not be presumed to have been incurred therein. 38 U.S.C. §§ 1131, 1132 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1985 to April 1988. 1. Service Connection The Veteran contends that his bilateral hearing loss and tinnitus were caused by noise exposure during service. Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 264 (2015) (“By internal agency materials, the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an ‘[o]rganic disease[] of the nervous system.’“); 38 C.F.R. § 3.309(a)(2017). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a); 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, 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 (Hz) 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 (2017). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85(a). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107 (2012); 38 C.F.R. §.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background In the November 1984 enlistment examination, the Veteran denied any ear trouble or hearing loss. See Service Treatment Records (STRs) -Medical. On audiological examination (ANSI-1969) the pure tone thresholds for the Veteran’s ears were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 20 LEFT 20 15 0 0 10 See November 1984 Audiogram, STR-Medical. In an April 1985, treatment note, the Veteran was observed to have normal Head, Eye, Ear, Nose and Throat Examination (HEENT) examination. See STR-Medical. The Veteran underwent another audiological evaluation in October 1987. The audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 0 15 LEFT 10 0 0 5 10 The Veteran’s separation examination in November 1988 included audiometric testing. The audiometry results to the extent they are legible, revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 20 20 20 15 20 20 10 See November 1988 Audiometry Test, in STR-Medical. In April 1997, the Veteran underwent a periodic examination for Air Force Reserve. See April 1997 Report of Medical Examination, in STR-Medical. His ears were normal on clinical examination. The Veteran also denied ear trouble and hearing loss. Id. The audiological testing (ANSI-1969) indicated, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 20 LEFT 0 5 0 0 20 See April 1997 Audiological Examination, in STR-Medical. The Veteran’s post service VA treatment records show the Veteran had an audiology consultation due to complaint of tinnitus for past 20 years. See November 2015 VA Audiological Consult, in CAPRI received in January 2016. The Veteran reported that he was exposed to military noise when he worked on the flight line with hearing protection during active service. Id. The Veteran was assessed with mild to moderate sensorineural hearing loss bilaterally. Id. In December 2015, the Veteran was fitted for bilateral hearing aids. See December 2015 VA Audiology Note, in CAPRI. The Veteran was provided a VA examination in August 2016. See VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The audiometric testing taken during the examination revealed the Veteran’s thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 45 60 LEFT 20 25 25 45 50 The audiological examination findings show the left ear with 100 percent speech recognition and the right ear with 100 percent speech recognition. Id. The VA examiner diagnosed the Veteran with sensorineural hearing loss bilaterally. The examiner found that there was no permanent threshold shift in the Veteran’s hearing between the Veteran’s enlistment physical and the Veteran’s final examination. The examiner opined that the Veteran’s hearing loss was less likely than not caused by or a result of active service. Id. The stated rationale for this opinion was that the Veteran’s enlistment and separation audiological examinations were within normal limits. Id. In providing a negative nexus opinion, the examiner considered the Veteran’s lay statements that he was exposed to flight line/jet noise with some hearing protection during active service, and that he had no other civilian noise exposure. Id. Analysis The record reflects the Veteran has a current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. Accordingly, the first element for establishing service connection, a current disability, has been met. The question becomes whether the disabilities are related to service. Upon review of the record, however, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral ear hearing loss. The second element of service connection, an in-service occurrence, has been met. Th Veteran asserted that he was exposed to jet noise during his service when he worked on the flight line. The Board finds the Veteran’s statements are competent and credible evidence of an in-service event. However, the third element of service connection, a nexus between a current disability and in-service occurrence, is not met. The Board finds that the August 2016 VA examiner’s opinion is the most probative evidence as to the etiology of the Veteran’s current bilateral hearing loss. The examiner’s opinion was based upon examination of the appellant, review of the medical records, and supported by detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board considered the Veteran’s statements in deciding the claim. While he believes that his hearing loss is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are not matters capable of lay observation, and require medical expertise to determine. Thus, his opinion as to the diagnosis and etiology of his hearing loss is not competent medical evidence. Accordingly, the Board finds that the Veteran’s lay statement to be of minimal probative value compared to the August 2016 VA opinion against the claim. In his substantive appeal, the Veteran contends that his three in-service audiological examinations reflect a decline in his hearing. See VA Form 9. However, the August 2016 examiner did not check that there was any “[s]ignificant changes in hearing thresholds in service,” as well as specifically noted that his enlistment and separation audiograms “showed hearing [within normal limits] from 500-6000 Hz for each ear.” See August 2016 Hearing Loss and Tinnitus Disability Benefits Questionnaire. The Board also considered whether the Veteran could establish service connection for hearing loss as a chronic condition listed in 38 C.F.R. § 3.309 (a). The Board finds that the Veteran’s hearing loss did not have its onset in and did not manifest within a year of the end of his active service in April 1988 based on the contemporaneous audiological examinations. In this regard, the Board notes that the Veteran was first diagnosed with hearing loss in November 2015. Furthermore, the Veteran’s statements supporting continuity of symptomatology since service are not credible for the reasons discussed above. For these reasons, presumptive service connection for hearing loss as a chronic disease is denied. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The preponderance of the evidence in this case shows that the Veteran’s current bilateral hearing loss was not incurred in or causally related to an in-service disease or injury, including in-service noise exposure. There is no reasonable doubt to resolve in the Veteran’s favor on this issue, and service connection for bilateral hearing loss is not warranted. See Gilbert, 1 Vet. App. 49. (Continued on the next page)   Thus, the Veteran’s claim for service connection for bilateral hearing loss is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel