Citation Nr: 20079983 Decision Date: 12/18/20 Archive Date: 12/18/20 DOCKET NO. 20-03 955 DATE: December 18, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss did not have its onset during service and is not related to any incident of service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1965 through July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in July 2020 for further development. That development having been completed, the matter has now returned to the Board. 1. Entitlement to service connection for bilateral hearing loss is denied. Service connection will generally be awarded when a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred or aggravated during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss. See Fountain v. McDonald, 27 Vet. App. 258 (2016). For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. Id. The Veteran asserts that he has current bilateral hearing loss and that it is the direct result of noise exposure during active service. See January 2020 VA Form 9. A VA examination report dated in September 2020 reflects puretone threshold results from audiometric testing, as well as speech discrimination scores, that satisfy the criteria for a hearing loss disability in both ears. See 38 C.F.R. § 3.385. Therefore, the Veteran is diagnosed to have a bilateral hearing loss disability, and the first element of service connection has been met. See 38 C.F.R. §§ 3.303, 3.385. The Veteran has related a history of being directly exposed to excessive noise for prolonged periods of time during his active duty in Vietnam. See January 2020 VA Form 9. His Military Occupation Code (MOS) was that of a clerk typist. See Form DD 214. He reported that he was exposed to noise during service when he was next to an artillery battery while on an infantry fire team, being near grenade explosions a couple of times, and being on helicopters. See September 2020 VA Examination. For purposes of this decision, the Board finds that the second element of service connection, in-service noise exposure, is established. The issue here is whether the Veteran’s current bilateral hearing loss disability may be related to his in-service noise exposure. The Board finds that the preponderance of the evidence weighs against such a relationship. In this regard, the service audiograms, which were converted from American Standards Association (ASA) units to units established by the International Standards Organization (ISO)-American National Standards Institute (ANSI) do not reflect puretone thresholds showing hearing loss. At his May 1965 audiogram during his entrance examination, his puretone thresholds, in decibels and converted to the ISO-ANSI standard of measurement, for the right ear, were 10, 10, 0, 0, -5, 35, and for the left ear, were 10, 5, 0, 15, 10, 15, each measured at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. See May 1965 Service Treatment Record (STR). These levels would be considered normal hearing for VA compensation purposes. The Veteran’s puretone thresholds at his exit examination, in decibels and converted to the ISO-ANSI standard of measurement, for the right ear, were 10, 10, 5, 5, and for the left ear, were 10, 5, 10, -5, each measured at 500 Hertz, 1000 Hertz, 2000 Hertz, and 4000 Hertz, respectively. See April 1967 STR. This also shows normal hearing for VA compensation purposes. The service treatment records do not otherwise show hearing loss or findings of abnormal hearing. While the Veteran asserted that the military did not conduct a proper exit examination in his October 2018 notice of disagreement, he provided no explanation for this belief. As noted above, his April 1967 separation examination does contain an audiological evaluation. In the September 2020 VA examination report, the examiner opined that the Veteran's current bilateral hearing loss was less likely than not related to service because he had normal hearing at entrance and separation. The examiner noted that although there was a slight change in the Veteran's hearing during service, it was still within normal limits in both ears for clinical and VA purposes, and did not meet VA criteria for a disability. The examiner noted that there were no shifts greater than 10dB from entrance to exit, which is not considered a significant change, and that the Veteran’s hearing at his entrance and exit examinations would be considered “at an excellent level.” See September 2020 VA Examination. The VA examiner cited a 2005 study by the Institute of Medicine Noise and Military Service, which stated that “ the committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.” The VA examiner concluded that since more than forty years have passed since the Veteran’s discharge from service, and taking into account the normal changes in hearing with the aging process, it is less likely than not that the Veteran’s hearing loss today is related to his military noise exposure. See id. The sole fact that the Veteran’s hearing loss disability did not manifest until a number of years after service separation does not preclude service connection. In this regard, section 3.385 of the regulations, which defines the criteria for establishing a hearing loss disability, does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. at 159. “Therefore, when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Id. at 160. The September 2020 VA medical opinion constitutes probative evidence weighing against a link between the Veteran’s current hearing loss disability and in-service noise exposure, as the opinion represents the conclusion of a medical professional specializing in hearing conditions, is based on the Veteran’s medical history, and is supported by a clear explanation sufficient for the Board to make an informed decision. The opinion does not contravene the holding in Hensley, as it represents the medical conclusion of an audiologist, rather than the legal conclusion of the Board, which was what the Hensley case concerned. Moreover, the VA examiner’s opinion is based not only on the normal audiogram at separation, but the lack of a significant puretone threshold shift during service. Additionally, the examiner noted that she did not find any complaint of hearing loss in the Veteran’s records and that he did not report longstanding hearing loss or have any history of seeking treatment with hearing aids when she first examined and diagnosed him with hearing loss in April 2018. Indeed, the Board highlights a March 2017 private medical treatment record reading “no hearing loss noted” in regard to the Veteran’s ears. The Board notes that the Veteran attributes his hearing loss disability to loud noise exposure, and that he reported that he was directly exposed to excessive noise for prolonged periods of time while he was stationed in the Republic of Vietnam. See February 2018 VA Form 21-526EZ, see also January 2020 VA Form 9. The Veteran’s belief that his hearing loss is linked to in-service noise exposure does not constitute competent evidence. Because he is not shown to have a medical background or expertise, he is considered a lay person in the field of medicine. Lay testimony is competent as to matters capable of lay observation or within a person’s first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board may not categorically discount lay evidence as not competent , but instead must determine on a case by case basis whether lay testimony is competent on the matter at issue, or whether medical evidence is required. Davidson, 581 F.3d at 1316. In this case, whether the onset of the Veteran’s hearing loss a number of years after service separation may be linked to his in-service noise exposure is a medical determination, as such a relationship cannot be observed through the senses alone. Thus, the Veteran’s unsupported lay opinion is not competent evidence on this issue, and therefore lacks probative value. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). In sum, the criteria for service connection for hearing loss on a direct basis are not satisfied. See Holton, 557 F.3d at 1366. Because the evidence does not show that the Veteran’s hearing loss manifested to a compensable degree within a year of his active service, presumptive service connection under 38 C.F.R. § 3.307 is not warranted. The Board also finds that service connection cannot be established based on chronicity or continuity of symptomatology. See 38 C.F.R. § 3.303(b). As noted above, his medical record showed that he had no hearing loss as recent as March 2017. See March 2017 Private Medical Treatment Record. While the Veteran’s representative stated in the October 2020 Brief that the Veteran reported that he started to notice hearing loss symptoms during service, this is not supported by the evidence of record. The Veteran has not stated that he experienced any symptoms of hearing loss during service and/or continuing since service. His only assertion is that he felt that service connection for hearing loss should be granted because he was directly exposed to excessive noise for prolonged periods of time while he was stationed in Vietnam. See VA Form 9, dated January 22, 2020. Accordingly, neither chronicity nor continuity of symptomology is established. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. (Continued on the next page)   As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.