Citation Nr: 18160830 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-03 869 DATE: December 27, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran has not been shown to have current bilateral hearing loss that manifested in service or within one year thereafter or that is otherwise related to his military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service, nor may sensorineural bilateral hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1132, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1959 to October 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Board reopened the claim for service connection for bilateral hearing loss and remanded the underlying merits of the claim for further development. That development has been completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal originally included the issue of entitlement to service connection for tinnitus. However, in a November 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for the disorder and assigned a 10 percent evaluation effective February 27, 2015. The grant of service connection for that issue constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the matter is no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. §3.303(d). 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. Sensorineural hearing loss is considered to be a chronic disease for VA compensation purposes. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including 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. §§1101, 1112, 1113, 1137; 38 C.F.R. §§3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For the purpose 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, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these 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. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of bilateral hearing loss. In fact, his August 1962 separation examination found his ears and drums to be normal, and his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) 10 (15) LEFT 10 (25) 10 (20) 10 (20) 10 (15) (In March 2017, the Board revised its policy regarding service connection claims for hearing loss for Vietnam-era veterans. When interpreting audiometric data from service treatment records, the Board has historically considered that service departments changed from using American Standards Association (ASA) standards to International Standards Organization-American National Standards Institute (ISO-ANSI) standards as of November 1967. The revised policy provides that, for service department audiograms conducted between January 1, 1967, and December 31, 1970, in which the standard used is not clearly indicated, the data should be considered under both the ASA and ISO-ANSI standards. In order to facilitate data comparison in this case, the results have been converted to ISO-ANSI standards in parentheses.) The Veteran also denied having a medical history of ear trouble at the time of his August 1962 separation examination. There is no evidence showing that the Veteran had sensorineural hearing loss in either ear within of year of his separation from service. Indeed, the first documented complaint of hearing loss was in 2007 at which time he was found to have left ear hearing loss, but not right ear hearing loss. Therefore, the Board finds that bilateral hearing loss did not manifest in service or for many years thereafter. The Board does acknowledge the Veteran’s statements that his hearing loss had its onset in 1960 in an April 2007 VA Form 21-526 and that he had the disorder for many years in a June 2007 VA treatment record. While lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds the Veteran is competent to state that he had hearing loss in service or for many years. However, any allegations that his hearing loss began in service are inconsistent with the contemporaneous record. As previously discussed, there is no evidence of any complaints, treatment, or diagnosis in service. In fact, his hearing was found normal at separation. Thus, there is affirmative evidence showing that the Veteran did not have bilateral hearing loss in service. In addition, the Veteran told the October 2007 VA examiner that he had hearing loss for 40 years, which would have been after his separation from service in October 1962. A March 2007 VA treatment record also did not find any right ear hearing loss as defined in 38 C.F.R. § 3.385, which provides further affirmative evidence showing that his right ear hearing loss did not have its onset until many decades after service. Based on the foregoing, to the extent that the Veteran has asserted that his hearing loss began in service, the Board finds that the reported history is not reliable or credible. Nevertheless, the Board does note that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has claimed that he was exposed to acoustic trauma during his period of service and that this was the injury sustained from which his hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding military noise exposure. See 38 C.F.R. § 3.159(a)(2). In addition, the post-service medical records show that the Veteran has been diagnosed with bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385; December 2017 VA examination report. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his noise exposure in service. During a June 2007 evaluation, the Veteran reported decreased hearing with occasional roaring in the left ear. The treatment provider found the Veteran’s left ear hearing loss to be conductive in nature and most consistent with otosclerosis (cause unknown and sometimes genetic). The Veteran was afforded a VA examination in October 2007 at which time he was again found to have left ear hearing loss for VA disability purposes, but not right ear hearing loss as defined in 38 C.F.R. § 3.385. The examiner opined that it is less likely than not the Veteran’s left ear hearing loss is related to his military service, including his noise exposure. The Veteran was afforded another VA examination in December 2017 during which he was found to have bilateral hearing loss for VA disability purposes. However, the examiner opined that the disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so doing, he noted that the Veteran’s hearing thresholds were within normal limits at separation and that there were no significant threshold shifts during his military service. The examiner also explained that the Veteran’s current hearing loss is consistent with presbycusis and not noise-induced hearing loss. In this regard, he stated that noise induced hearing loss will present with a noise induced "notch" at 4000 Hertz, noting that the outer hair cells in the cochlea that detect 4000 Hertz are the ones that are most affected by loud sound (regardless of what kind of sound it is). He indicated that the Veteran’s hearing loss is not consistent with the type of loss one would see with noise damage There is no medical opinion otherwise relating the Veteran’s current bilateral hearing loss to his military service. The Board has also considered the Veteran's statements that his current hearing loss is related to his military noise exposure. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the disorder, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the December 2017 VA examiner's opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and is supported by a complete rationale based on such knowledge. The examiner also reviewed the claims file and considered the Veteran's reported history and the lay statements, as well as the type of hearing loss demonstrated by objective testing. Based on the foregoing, the evidence does not show that the Veteran has current bilateral hearing loss that manifested in service or within one year thereafter or that is otherwise causally related thereto. Therefore, the Board finds that the preponderance of the evidence weighs against the claim, and service connection is not warranted for bilateral hearing loss. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel