Citation Nr: 20007145 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 14-03 193 DATE: January 28, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has bilateral hearing loss that is due to a disease or injury in service, to include exposure to noise. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to January 1971. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from an April 2013 rating decision issued by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2017 hearing. A transcript of the hearing is associated with the record. Addressing the relevant procedural history, this claim was previously before the Board in November 2017. At that time, the claim was remanded for additional development, to specifically include obtaining an addendum opinion. The claim has now been returned to the Board for further adjudication. The Board notes that one additional issue that was originally on appeal was granted service connection in a November 2018 rating decision. This favorable decision has not been appealed by the Veteran and that issue is, therefore, no longer before the Board. Entitlement to service connection for bilateral hearing loss is denied. The Veteran seeks entitlement to service connection for bilateral hearing loss. The Veteran has specifically contended that his asserted hearing disability, “can be attributed to his active duty and deployment to Vietnam where his primary duty was a radio man” and that he was exposed to, “hazardous levels of noise (i.e. incoming mortars, rocket attacks)”. See February 2014 VA 646. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran’s DD 214s confirm that he worked as a radio operator in communications during his active duty service. Therefore, the record supports his assertion that he was exposed to noise during his active service, and the question for the Board is whether the Veteran has a current hearing loss disability that began during service or is otherwise at least as likely as not related to his active duty service, to include the in-service exposure to noise. In this case, the Board concludes that, although the Veteran has a current hearing loss disability for VA purposes and the Veteran is considered credible in his reports of in-service noise exposure, the preponderance of the probative evidence weighs against finding that the Veteran’s bilateral hearing loss began during service or within one year of separation from service, or that this condition is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107 (b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). A hearing loss disability for VA purposes means that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s service treatment records are silent for any complaint of or treatment related to hearing loss. The Veteran had a normal evaluation of the ears at his January 1971 separation examination. The record is thereafter silent for any complaints of or treatment related to hearing loss for approximately four decades after the Veteran’s departure from active duty service. In April 2011, the Veteran was afforded a Compensation and Pension examination. He reported hearing loss with a reported onset of “not sure” and reported difficulty with background noise, television, and in restaurants. He told the examiner that his only in-service noise exposure was environmental because he never had to fire. After a review of the claims file, interview with the Veteran, and examination, that examiner determined that “the Veteran’s current bilateral hearing loss was not caused by or the result of military noise exposure based upon the Veteran’s Separation Hearing Test on 1-25-71 showing normal hearing in both ears”. The examiner further noted that, “there was also occupational exposure reported with various jobs in factory settings”. In February 2018, the Veteran was afforded an additional Compensation and Pension examination. After a review of the claims file, interview with the Veteran, and examination, that examiner determined that it was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted that the, “Veteran’s hearing at the time of military separation was normal bilaterally” and that, “[a]ccording to the American College of Occupational Medicine Noise and Hearing Conservation Committee, ‘a noise induced hearing loss will not progress once it’s stopped’”. In April 2019, the Veteran was afforded an additional Compensation and Pension examination. In regard to an onset, the Veteran “reports after being in the military”. After a review of the claims file, interview with the Veteran, and examination, that examiner determined that it was less likely than not (less than 50 percent probability) incurred in or caused by the Veteran’s military service. That examiner explained that the Veteran’s, “[h]earing was well within normal limits at separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise” and “[t]he veteran had a 38 year history of civilian occupational noise exposure on a daily basis versus his 2 year time in the service”. Further, the examiner noted that, “[a]coustic damage is more likely when someone is exposed on a regular basis over an extended amount of time. Acoustic damage is documented with shifts in thresholds and does not have a delayed onset. In its landmark report Noise and Military Service—Implications for Hearing Loss and Tinnitus (2006), the Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. Based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. This study remains the definitive consensus in this matter.” The Board accepts the VA examiners’ opinions as highly probative evidence that the Veteran did not have an in-service loss of hearing in either ear and that there is no scientific evidence to support a finding that the Veteran’s current hearing loss may be a delayed result of any in-service exposure to noise. Significantly, there are no competent medical opinions of probative value that would support the Veteran’s assertion that his current hearing loss condition is related to his military service. In this regard, the Board has considered the private audiometric testing results of record. However, as these records contain no opinion regarding the nature and etiology of the Veteran’s asserted condition, they are not probative to deciding the matter at hand. Further, the Board notes that these records contain a sheet that advised the Veteran that, “[l]ong-term exposure to continuous loud noise without hearing protection is only one cause among many, but it is the cause that will most likely affect you at work. This is why your employer is concerned and wishes to help you protect yourself from its damaging effect”. Thus, if anything, these private records further substantiate the assertion made by multiple VA examiner’s that post-service employment, and not in-service noise exposure is responsible for the Veteran’s condition. The Board reiterates that each VA examiner reviewed the claims file and provided opinions that were sufficiently clear and had well-reasoned rationales. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board relies on these opinions in finding that the Veteran’s hearing loss is unrelated to his military service. The Board acknowledges the Veteran’s assertions that his current hearing loss is related to his military service. See e.g. February 2017 Board Hearing Transcript. The Veteran is competent to report on matters observed within his respective personal knowledge, such as observed hearing loss symptomology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the diagnosis and etiology of hearing loss for VA purposes is not a matter capable of lay observation and requires medical expertise to determine as it is based on specific audiological measurements. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Veteran’s statements lack probative value. For similar reasons, while the Board acknowledges the lay statements made by the Veteran’s wife, classmate, and best friend, these statements are also not probative to the matter at hand. Further, the Board has considered the assertion made by the Veteran, through his representative, that “there was an unsolicited opinion made about his hearing loss when he had the Agent Orange exam and they said it wasn’t service-connected but, it wasn’t, it wasn’t based on a review of the records.” In contrast, the Board emphasizes that all VA examiners have stated their opinions are based on a review of the Veteran’s claims file. Additionally, even if the initial opinion did not suffice, which is not the case, two other VA examiners have also determined that the Veteran’s condition is unrelated to his military service, and there are no contrary opinions of record. (Continued on the next page)   The Board has also considered whether service connection may be granted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b) and 3.309 (a), which relate to chronic conditions. However, to establish continuity of symptomatology, the evidence must show that a condition was “noted” in service, continuous post-service symptomatology, and competent evidence of a nexus between the present disability and that post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997) (overruled on other grounds). The Board reiterates that hearing loss for VA purposes is based on specified audiological measurements. In this case, the Board reiterates that there were no complaints of or treatment for hearing loss as defined by VA during the Veteran’s military service. Further, in contrast with continuous post-service symptomatology, there was none reported for approximately forty years after the Veteran's departure from active duty. This lengthy period without complaint or treatment of is one piece of evidence that there has not been ongoing symptomatology and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Therefore, service connection on a presumptive basis is not warranted. For similar reasons, the evidence of record weighs against finding the Veteran’s hearing loss manifested to a compensable degree within a year of him leaving service. The Board does not doubt that the Veteran has hearing-related challenges and is sympathetic to his described symptomology. However, the most competent, probative evidence of record does not show that the Veteran’s current hearing loss manifested during his active service or to a compensable degree within one year of separation from active service, or that the hearing loss is at least as likely as not etiologically related to his active service, to include in-service exposure to noise. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for hearing loss. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, Associate Counsel 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.