Citation Nr: 18118917 Decision Date: 07/17/18 Archive Date: 07/17/18 DOCKET NO. 12-08 386 DATE: July 17, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran died in October 2010; the appellant is the Veteran's surviving spouse, who was substituted as the claimant to continue the Veteran's pending service connection claim to completion. 2. The Veteran's bilateral hearing loss first manifested many years after discharge from active service and is related to active service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to December 1973; he served in Vietnam (RVN) from January 23, 1973 to July 8, 1973. He died in October 2010. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision which denied the claim seeking service connection for bilateral hearing loss. The Veteran died in October 2010, during the pendency of his claim. Within a year of his death, the appellant filed a formal claim for dependency and indemnity (DIC), death pension, and accrued benefits (VA Form 21-534). Following the Veteran’s death in October 2010, the appellant filed a claim based upon her status as the Veteran’s surviving spouse requesting to continue the Veteran’s claims. The law provides that, upon the death of a claimant, a person who would be eligible to receive accrued benefits due to the claimant may be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A (2012). Accordingly, the appellant’s request for substitution as the claimant and to continue the Veteran’s pending service connection claims, as well as the claim to reopen, was accepted by the RO, and the appellant’s request for substitution was granted. In June 2017, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in October 2017. While the appeal was in remand status, the issue of entitlement to service connection for tinnitus, which was previously on appeal, was granted by the Appeals Management Center in October 2017 and is no longer before the Board. The remaining issue listed above has now returned to the Board for appellate review. 1. Entitlement to service connection for bilateral hearing loss In the present appeal, the contention is that the Veteran developed bilateral hearing loss as a result of his exposure to acoustic trauma while serving in the military. Specifically, that he was exposed to constant and abnormal noise produced by helicopter, explosions and small arms fire while serving in the Republic of Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. In this regard, the Board notes that the July 2009 VA audiological evaluation diagnosed the Veteran with bilateral sensorineural hearing loss consistent with 38 C.F.R. § 3.385. Thus, the requirement of a current disability has been fulfilled. In this case, the dispositive issue is whether there is a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). While the Veteran's Form DD-214 does confirm that he was a helicopter mechanic during military service, the service treatment records (STRs) do not demonstrate any hearing loss disability during military service. The audiograms noted throughout those records, including the January 1970 enlistment examination, as well as the December 1973 discharge examination, do not reflect a hearing loss disability under 38 C.F.R. § 3.385. Significantly, the first evidence of sensorineural hearing loss was not shown in service or within one year of service separation. In fact, the first objective clinical documentation of hearing loss is dated in July 2009, approximately 36 years after service separation. The Board must note the lapse of many years between the Veteran’s separation from service and the first diagnosis of sensorineural hearing loss. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). As such, service connection for hearing loss cannot be granted on a presumptive basis. 38 C.F.R. § 3.303. However, service connection for hearing loss can still be established if evidence shows that a current impaired hearing disability is actually due to incidents during service. Hensley v. Brown, 5 Vet. App. 155 (1993). In light of the above, the Board finds that the most probative evidence of record shows that the Veteran’s bilateral hearing disability is not due to an incident during service. Specifically, the July 2009 VA examination report and the June 2017 medical opinion, regarding the etiology of the Veteran’s bilateral hearing loss disability, weigh against the claim. Following the July 2009 examination, the examiner opined that it is not likely that the hearing loss is the result of military noise exposure. Moreover, in June 2017, the examiner concluded that, given there was no significant shift in hearing levels greater than normal measurement variability during military service and no record of complaint or treatment of claimed condition in the STRs, it is less likely as not that the hearing loss is related to military noise exposure. The June 2017 VA examiner's opinion is entitled to significant probative weight because the examiner explained the reasons for the conclusions found and based them on an accurate review of the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Absent competent evidence establishing a link between current hearing loss and service, the claim for service connection for hearing loss cannot be granted. Again, there is more than a 36-year gap between the Veteran's discharge from service and the first objective evidence of a disability. The Veteran's statements for treatment purposes place the onset of noticeable hearing loss years after service and there is no competent evidence linking the remote onset to an in-service event. Rather, the only competent opinion addressing the origin of the disability is a negative opinion. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for hearing loss. See Gilbert, 1 Vet. App. at 55. Although the Veteran was competent to describe his hearing loss, the Veteran did not have, nor does the appellant have, the requisite specialized knowledge or training to diagnose hearing loss or provide an etiology opinion for such. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's lay testimony and Appellant's lay testimony as to whether he had such a diagnosis is not probative. The Board finds the opinion of the VA examiners to be more persuasive than the lay assertions. In summary, the preponderance of the evidence weighs against finding in favor of the Appellant's claim for service connection for bilateral hearing loss and tinnitus, for substitution purposes; therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs