Citation Nr: 20009902 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-64 254 DATE: February 6, 2020 ORDER Entitlement to service connection for bilateral sensorineural hearing loss disability is denied. FINDINGS OF FACT The Veteran’s bilateral hearing loss disability did not have onset during military service or within the first post-service year and is not shown to be related to his military service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from November 1965 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before a Veteran’s Law Judge on April 2019. However, the Veteran cancelled the hearing in an April 2019 statement in support of claim. The Board notes that the Veteran’s appeal has been advanced on the docket due to his advanced age. 38 C.F.R. § 20.900 (Rule 900). Service Connection Generally, to establish entitlement to service-connected compensation benefits, 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.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Organic diseases of the nervous system are presumed to have been incurred in service if they manifested to a degree of 10 percent within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309. As an organic disease of the nervous system, sensorineural hearing loss is considered a chronic disease for VA compensation purposes. See Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss is considered organic diseases of the nervous system subject to § 3.309(a)). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, when making credibility determinations, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Entitlement to service connection for sensorineural bilateral hearing loss disability The Veteran contends he is entitled to service connection for a bilateral hearing loss disability. For the reasons stated below, the Board finds that service connection for a bilateral hearing loss disability is not warranted. As required under the first prong of Shedden, the Veteran has a current bilateral sensorineural hearing loss disability. 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. The March 2015 VA audiology examination produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 35 50 65 80 85 LEFT 35 50 60 70 75 The Veteran’s January 2017 VA examination also returned speech recognition scores of 78 percent for the right ear’s Maryland CNC Test and 82 percent for the left ear’s Maryland CNC Test. Given that the auditory threshold for the frequencies of 1000 through 4000 Hertz in the left ear measured 40 decibels or greater, and the auditory threshold for the frequencies of 1000 through 4000 Hertz in the right ear measured 40 decibels or greater, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. As to the second prong of Shedden, in-service incurrence or aggravation of a disease or injury, the Veteran contends that his hearing loss was due to noise exposure, specifically noise from artillery, tanks, vehicles, machinery, and small arms fire without hearing protection. The Veteran’s personnel records support his contentions regarding his Military Occupational Specialty (MOS). The Veteran’s DD 214 for his service in the Army shows his MOS as a 13A10 (Field Artillery Basic). In this position, the Veteran was exposed to noise from artillery, tanks, vehicles, machinery, and small arms fire without hearing protection. In a September 2015 VA examination for his back claim, the Veteran reported that he was also a Jeep driver while in the military. The Board finds the Veteran to be a reliable historian as to his report of in-service noise exposure. See Jandreau, 492 F.3d at 1377. Thus, the Board credits the Veteran’s statements and concedes in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. Addressing the third prong of Shedden, nexus between the current disability and conceded in-service noise exposure, the Board considers the medical opinions and the lay testimonies provided in the record. The Veteran was afforded a VA examination in January 2017, during which he reported that he was exposed to noise from artillery, tanks, vehicles, machinery, and small arms fire without hearing protection. The Veteran also reported that he had civilian noise exposure with hearing protection. He denied recreational noise exposure. The January 2017 VA examiner opined that the Veteran’s bilateral hearing loss was less likely as not caused by noise exposure during military service because the Veteran’s service treatment records show normal hearing at discharge and also because the Veteran reported civilian noise exposure. There were no significant threshold shifts in either ear during active military service. There is no evidence that the examiner was not competent or credible. As his medical opinion was based on the medical evidence in the record, the Veteran’s lays statements and a physical evaluation of the Veteran, the Board finds that the opinion is entitled to significant probative weight as to the etiology of the Veteran’s hearing loss disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In an August 2014 audiology consult, the Veteran reported that the onset of his hearing loss was gradual and that he experienced difficulty hearing voices. The Veteran also reported on a different occasion, that he had had an audiology consult fore reported hearing loss as early as 2004. In a September 2015 VA examination for his back claim, the Veteran reported that he worked as an aircraft mechanic, a sheet metal mechanic, and in electronics following his discharge from the Army. In an April 2019 statement in support of claim, the Veteran reported that the noise to which he was exposed after his discharge from the Army did not reach the level of noise exposure in the Army. In his November 2017 Notice of Disagreement, the Veteran, through his counsel, reported that his hearing loss began during active duty due to his MOS. The Veteran’s service treatment records (STRs) do not reflect hearing loss in service. Service records revealed a September 1967 separation examination, which showed normal hearing in both ears with no major threshold shifts. In addition, there is no evidence that disabling sensorineural hearing loss manifested itself to a compensable degree within a year of service. Although the Veteran reported that he has had hearing loss since service, the contemporaneous STRs show that the Veteran did not have hearing loss at separation nor did he complain of hearing problems in service. Because a hearing loss disability is not capable of lay observation and requires verification by medical evidence, the Veteran’s lay statements alone, without contemporaneous medical evidence, are not competent to establish a diagnosis of hearing loss in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board does not assign probative value to the Veteran’s lay statements as they pertain to the onset of his hearing loss in service. With regards to the January 2017 VA examination, the Board finds the VA examiner’s medical opinion adequate. The Board does not find that the VA examiner’s medical opinion was inconsistent with the holding in Hensley v. Brown, 5 Vet. App. 155 (1993), which indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. In this case, the examiner based his opinion on more than just the fact that the Veteran’s hearing loss was not shown in service. Specifically, the examiner noted that following the Veteran’s discharge from service, he did have occupational noise exposure because he worked as an aircraft mechanic, a sheet metal mechanic, and in electronics. Although the Veteran denied that the noise he was exposed to in service was greater than his noise exposure following discharge, the Board notes that the Veteran only served in the military for approximately two years, while his occupation following service lasted for a significantly longer period. Based on the foregoing, the only competent and credible evidence of record concerning a nexus are the Veteran’s STRs, the January 2017 VA examination, and the Veteran’s statements regarding his post-service employment. As such, the presumption of service connection does not apply in this case because there is no probative evidence of the manifestation of hearing loss within one year of service. 38 C.F.R. § 3.307(a)(3). Continuity of symptomatology also does not apply in this case as there is no evidence that the Veteran’s hearing loss manifested in service and has continued to the present. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Although the Veteran claims that his hearing loss started in service, the Veteran denied hearing loss in his STRs, including on his Report of Medical History dated December 1965. During an annual check-up, dated April 2014, the Veteran’s hearing was reported as normal, and during a June 2014 medical treatment note for hearing aids, the examiner noted that the Veteran was initially tested for hearing in 2004. Also, in the Veteran’s post-service record, he stated that the onset of his hearing loss was gradual. After careful review, the Board finds that although the first and second elements of service connection are met, considering the evidence in the light most favorable to the Veteran, the preponderance of the evidence is against a nexus between the in-service occurrence and the Veteran’s current disability. Because a preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.