Citation Nr: 19153302 Decision Date: 07/11/19 Archive Date: 07/10/19 DOCKET NO. 16-39 876 DATE: July 11, 2019 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown in service or for many years thereafter and is not otherwise etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1973 to March 1975. As a preliminary matter, the Board notes that in his February 2015 notice of disagreement, the Veteran disagreed with the denial of his claims seeking service connection for a right ankle disorder, a right knee disorder, a left shoulder disorder, a back disorder, a left ankle disorder, a left knee disorder, a headache disorder, and an eye disorder. However, the Veteran did not file a substantive appeal to the denial of these claims. Accordingly, the Board has no jurisdiction over these claims and these issues are not properly before the Board. 1. Entitlement to service connection for bilateral hearing loss The Veteran is claiming entitlement to service connection for bilateral hearing loss. In support of his claim, the Veteran contends that his bilateral hearing loss is related to his active duty service because he was exposed to loud noises from heavy artillery equipment, including M-16 grenade launchers, M-60 machine guns, and hand grenades. The Veteran also contends that his current bilateral hearing loss is related to an incident during POW training where he was required to put his arms and leg around a trash can that was then hit by trainers, resulting in a loud noise being emitted by the trash can that caused his ears to ring. Finally, the Veteran contends that his hearing loss is related to his active duty service because he was not provided with hearing protection when around such heavy artillery and during his POW training. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including sensorineural hearing loss and tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). In cases where a hearing loss disability is claimed, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above 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. Service connection for a current hearing loss disability is not precluded by 38 C.F.R § 3.385 where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results from a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for a hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App. at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385, then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Hensley, 5 Vet. App. at 159. Based upon the evidence of record, the Board determines that although the evidence shows that the Veteran has a current diagnosis of bilateral hearing loss and in-service noise exposure, service connection is not warranted for bilateral hearing loss because the evidence fails to show that his hearing loss was incurred in or is otherwise etiologically related to his active duty service. Initially, the Board notes that it is willing to accept the Veteran’s assertions that he was exposed to acoustic trauma as a Pershing missile crewman and during training. However, the in-service medical records fail to show that his bilateral hearing loss is related to his active duty service. First, his service treatment records do not reflect any complaints, signs, symptoms, or a diagnosis related to hearing loss. Next, the evidence fails to show a threshold shift in his hearing during his active duty service. Specifically, the report from his September 1972 entrance examination showed that he underwent an audiological examination and that his pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 N/A 15 LEFT 15 10 15 N/A 10 Then, in connection with his separation from service he underwent another audiological examination. The report from his December 1974 examination did not show a diagnosis of hearing loss and showed that his pure tone thresholders, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 N/A 20 LEFT 10 15 20 N/A 15 Indeed, the results of the audiological examination performed during the December 1974 examination show that in his right ear, the pure tone threshold improved at 1000 Hz and the pure tone thresholds increased by only 5 decibels at the other frequencies. With respect to his left ear, the results of the December 1974 audiological examination show that the pure tone threshold at 500 Hz improved and that the pure tone thresholds increased by only 5 decibels at the other frequencies. Further, the Veteran did not report any hearing loss, stating that his health since his last physical had been “fine.” The Board also observes that in July 1974, an audiological evaluation was performed in connection with the hearing conservation program. There, the pure tone thresholds, in decibels, in the Veteran’s right ear were 5 at 500 Hz and 0 at 1000 Hz, 2000 Hz, and 4000 Hz. The pure tone thresholds, in decibels, in his left ear were 5 at 500 Hz and 2000 Hz and 0 at 1000 Hz and 4000 Hz. Thus, the July 1974 audiological evaluation actually showed improvement of his hearing. Next, although the Veteran contends that he has experienced hearing loss since two-years after his separation from service, the treatment records do not indicate any issues related to hearing loss until May 2014, more than 39 years after his separation from service. There, the treating physician indicated that the Veteran was “a little hard of hearing.” Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for hearing loss is not warranted because it did not manifest to a degree of 10 percent or more within a year of separation from active service. See 38 C.F.R. § 3.307(a). The Board observes that the Veteran is competent to report symptoms of hearing loss. However, the medical evidence fails to demonstrate a continuity of symptomatology because the record contains no post-service clinical evidence concerning complaints of or treatment for hearing loss until more than 39 years after his separation from active duty service. To the extent that the Veteran has indicated that he first began experiencing hearing loss two years after his separation from service, the Board finds his statement is entitled to less probative weight because he did not seek treatment until more than 39 years after his separation from active duty service and because the report from his separation examination does not reflect hearing loss or a significant threshold shift during his active duty service. The Board also notes that he filed a claim for an acute appendicitis in March 1975, many years prior to filling the claim on appeal. Therefore, the fact that he was aware of the VA benefits system and sought out a claim for other benefits but made no reference to the disorders he now claims, weighs heavily against his credibility. Accordingly, service connection for hearing loss and tinnitus is not warranted based on continuity of symptoms. Further, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s hearing loss to his active duty service, despite his contentions to the contrary. Here, the Board places significant weight on the opinion of the November 2014 VA examiner who performed a review of the Veteran’s service and medical treatment records and a thorough audiological examination. Based on a review of such records and an audiological examination, the examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service because his hearing remained within normal limits in both ears during military service, there were no audiological examinations indicating the onset of hearing loss in either ear within a reasonable time after his separation from active duty service, and the audiological evaluations performed in connection with his entrance and separation from active duty service did not show significant threshold shifts. The Board concludes that the examiner’s opinions are highly probative, entitled to substantial weight, and show that the Veteran’s hearing loss is not etiologically related to his active duty service given the thorough rationale provided by the examiner. Additionally, the Board notes that the Veteran has not provided any evidence, including private opinions and/or medical evidence to establish a nexus between his bilateral hearing loss and tinnitus and his active duty service. The Board has also considered the statements made by the Veteran relating his hearing loss to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, while the Veteran can provide competent testimony regarding symptoms of hearing loss, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau, 492 F.3d at 1377, n.4. Thus, to the extent that the Veteran believes that his hearing loss is related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. Moreover, to the extent that he has stated that he was not provided with hearing protection during service, the July 1974 hearing conservation program record reflects that he was provided with protection.   By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s service connection claim. Accordingly, the Veteran’s appeal is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel