Citation Nr: 18160021 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-14 112 DATE: December 21, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has bilateral hearing loss due to noise exposure in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110; 38 C.F.R. 3.303(a). Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2). However, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See 38 C.F.R. §3.159(a)(1). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzalez v. West, 218 F. 3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from bilateral hearing loss as a result of noise exposure while in service. The Veteran’s service treatment records are silent for any signs or symptoms of bilateral hearing loss. Specifically, the Veteran’s August 1959 enlistment examination, March 1962 initial flying examination, and August 1963 separation examination all indicate “normal” results for “ears-general.” Audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standards by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 ADD 15 10 10 10 5 The Veteran’s service treatment records include a March 1962 initial flying examination with an audiological examination that produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 -5 X 5 LEFT 0 0 -5 X 5 Because it is presumed the ASA standard was used in 1962, the Board has converted these pure tone thresholds consistent with the conversion chart above. Thus, in ISO-ANSI standards, the Veteran’s pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 X 10 LEFT 15 10 5 X 10 The Veteran was provided with audiological evaluation upon separation in August 1963 which produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 0 0 0 LEFT -5 -5 0 0 0 Upon conversion to ISO-ANSI standards, the Veteran’s pure tone thresholds from the August 1963 audiological evaluation were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 10 5 LEFT 10 5 10 10 5 The Veteran was provided with a VA audiological examination in January 2015 which produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 40 70 80 LEFT 20 25 45 60 75 The Veteran’s speech recognition scores, using the Maryland CNC Test, were 94 percent bilaterally. The VA examiner diagnosed the Veteran with sensorineural hearing loss bilaterally. The examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by his service because the Veteran had hearing within normal limits bilaterally by pure tones at enlistment and separation with minimal significant adverse changes in hearing during military service as well as VA conceded military noise exposure. Moreover, after reviewing the record and conducting a clinical examination, the VA examiner stated that there was no evidence that the Veteran’s hearing was adversely affected by his active duty service. Based on the January 2015 VA examination report discussed above, the Board finds that service connection is not warranted for bilateral hearing loss. Although the Veteran has been diagnosed with bilateral hearing loss, there is no probative persuasive evidence that shows that the bilateral hearing loss occurred in service. The service treatment records show no significant pure tone threshold shifts while in service, and are absent of any complaints for hearing loss. There is no competent evidence that the Veteran’s post-service hearing loss is related to his active duty service. The Board acknowledges the Veteran’s argument, through his representative, that the he should be granted service connection for bilateral hearing loss based on conceded acoustic trauma in service. However, the VA examiner thoroughly reviewed the Veteran’s history and his medical records during and after service and provided a negative nexus opinion, stating that the Veteran’s hearing loss was not caused by his exposure to noise while in service, which is probative and supported by sufficient rationale. As such, the Board finds that the VA examiner’s opinion is highly probative, especially given the lack of any medical evidence to the contrary. In his notice of disagreement, the Veteran has argued that the VA examination is inadequate because it “lasted less than 5 minutes.” He also reported that a VA doctor “found his hearing loss to be 100% service connected.” Upon review, however, the record does not contain an opinion from a VA doctor indicating that the Veteran’s hearing loss is related to service. Moreover, the report of the VA examination reflects that the examiner reviewed the Veteran’s past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered appropriate diagnoses and opinion consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinion proffered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the examination is adequate for adjudication purposes. In the November 2018 Appellate Brief, the Veteran’s representative noted that 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. The Board has considered 38 C.F.R § 3.303(d), however, in this case, a VA examiner has indicated that the Veteran’s hearing was not adversely affected by his active duty service and his current hearing loss is not related to such service. The Board finds this finding from a medical professional to be more probative than the unsupported statement that the post-service hearing loss is related to service. The Board has also considered the lay evidence offered by the Veteran. However, the question of whether the Veteran’s current hearing loss is related to his military service cannot be determined by mere observation alone. The Board finds that determining whether the Veteran’s noise exposure in the military caused his bilateral hearing loss is not within the realm of knowledge of a non-expert. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that any nexus opinion that his hearing loss is related to service is not competent evidence and therefore is not probative of whether his current bilateral hearing loss was caused by his active duty service. (Continued on the next page.) Accordingly, service connection for bilateral hearing loss must be denied. The preponderance of the evidence is against the claims and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel