Citation Nr: 1806765 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-33 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Veteran represented by: Jeffrey Bunten, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1992 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office and was remanded in October 2017. In October 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT The most probative evidence indicates that the Veteran's left ear hearing loss is not related to service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 in a liberal manner 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). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Veteran asserts that he has left ear hearing loss as a result of noise exposure during active duty service. In this case, the record reflects that the Veteran has a left ear sensorineural hearing loss disability as defined by VA regulation. 38 C.F.R. § 3.385 (2017). The Veteran's military occupational specialty as an infantryman carries a high probability of exposure to hazardous noise. Thus, the remaining question before the Board is whether the Veteran's hearing loss began in or within one year of service, or is otherwise related to service. The Veteran's service treatment records show no complaints of or treatment for hearing loss at any time, and there is no competent evidence showing a hearing loss disability consistent with 38 C.F.R. § 3.385 during or within one year of service. The Board notes that Veteran has reported that he first began to experience symptoms of hearing loss during service. However, while lay persons are competent to report on what they have experienced or witnessed, the diagnosis of hearing loss requires medical testing and expertise to determine. Thus, as a lay person, the Veteran's opinion as to the onset of his hearing loss disability is not competent medical evidence. 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). As such, the most probative and credible evidence does not show a hearing loss disability during service or within one year after the Veteran's separation from service. As the evidence fails to show a hearing loss disability in service or within one year of service, the question in this case becomes whether the current disability is etiologically related to service. On this question, the preponderance of the competent and probative evidence is against the claim. The Veteran first underwent VA examination in connection with this claim in June 2010, at which time audiological testing demonstrated that he did not have a left ear hearing loss disability for VA purposes; as such, no etiological opinion was provided. The Veteran again underwent VA examination in March 2012, at which time he did present with a left ear hearing loss, but the examiner stated that no opinion could be provided without resorting to mere speculation because the Veteran's service treatment records were unavailable for review. The examiner provided an addendum opinion in June 2012 following review of the records, and opined that it was not likely that the Veteran's hearing loss was caused by an event in service. The only rationale the examiner provided for the opinion was that the Veteran entered and exited service with normal hearing and without a significant shift in hearing during duty. As the first three opinions were not sufficient for purposes of determining service connection, the Board remanded for an additional opinion which was provided in November 2017 by the March 2012 examiner. Following an additional review of the record, the examiner again opined that it was not likely that the Veteran's left ear hearing loss was related to his service. In support of the opinion, the examiner cited to medical literature for the proposition that a "delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." The examiner also reported that hearing loss due to noise exposure generally occurs at the time of exposure or very soon afterwards and there is no known method for hearing loss to appear years after a noise exposure and, given the timing of the onset of the Veteran's hearing loss, it was very unlikely to be related to in-service noise exposure. As the November 2017 opinion was provided following thorough review of the claims file and included a detailed rationale that cited to medical treatise evidence, the Board finds this opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (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). There is no competent medical opinion to the contrary. To the extent the Veteran alleges that his left ear hearing loss is related to service, as noted above the Veteran is a lay person and is not competent to render such an opinion. See Jandreau, 492 F.3d at 1376-77. As such, the Board finds the November 2017 VA opinion to be of greater probative value than the Veteran's lay contentions. As the most probative evidence indicates the Veteran's current left ear hearing loss disability was not shown in service or for several years thereafter and is not related to his military service, the Board finds that the preponderance of the evidence is against the claim for service connection for left ear hearing loss and the claim is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for left ear hearing loss is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs