Citation Nr: 20006569 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 09-41 139 DATE: January 27, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2008 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran appeared and testified at a video conference hearing before the undersigned Veterans Law Judge. This matter was previously remanded by the Board in September 2016 and May 2018 for further development. A review of the record indicates that the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is due to traumatic noise exposure in service. Specifically, he contends that a 40 pound mine exploded, knocking him unconscious and perforating his eardrums. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of bilateral hearing loss as evidenced by the July 2008 VA examination. Other organic disease of the nervous system, which encompasses sensorineural hearing loss, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with bilateral hearing loss until January 2000, nearly 30 years after his separation from service and 26 years outside of the applicable presumptive period. The probative evidence of record fails to show that the Veteran complained of hearing loss consistently since service. His first treatment for hearing loss was in approximately 1998 when he received hearing aids. He did not receive further treatment until 2008 when he sought to reopen his claim for service connection for bilateral hearing loss. At his June 2016 Board hearing the Veteran testified that he sought treatment in 2009 because he was having problems hearing after 38 years of working on the loading docks. Although the Veteran testified that he stopped playing in a band immediately after service, this appears to be due to an inability to “sustain any sense of sound for [his] instrument” and not because of any sensorineural hearing loss. Although the probative evidence of record does not show that the Veteran's hearing loss was a chronic condition, service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s bilateral hearing loss and an in-service injury or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The July 2008 VA examiner opined that the Veteran’s bilateral hearing loss is not at least as likely as not related to an in-service injury or disease, including the perforation of both ear drums due to booby trap explosion in his proximity. The rationale was that the Veteran’s hearing tests at induction and separation showed no hearing loss and the air conduction pattern shown on the VA examination was not consistent with that shown on his in-service audiological examinations. Further, the January 2017 and July 2019 VA examiners opined that the Veteran's bilateral hearing loss was not caused or aggravated by his in-service head injury. The rationale was that the Veteran had normal hearing at entrance and separation examinations, there was no significant threshold shift during service, and at separation, the Veteran noted a ringing in his ears but not any hearing loss. While the Veteran believes his bilateral hearing loss is related to an in-service injury or disease, including combat related traumatic noise exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller 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.