Citation Nr: 20021065 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-08 318 DATE: March 24, 2020 ORDER Entitlement to service connection for a bilateral hearing loss disability, to include as secondary to rhinitis, is denied. FINDING OF FACT A bilateral hearing loss disability manifested more than one year after separation and is not shown to be causally related to an in-service injury or disease or to have been caused or aggravated by another service-connected disability. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 to August 1972 and from February 1974 to July 1975 with additional periods of active duty for training (ADT or ACDUTRA) in the Army Reserve. While the DD-214 for the period of service from February 1972 to August 1972 characterizes the service as ADT, as the Veteran is service-connected for a right shoulder disability due to a right shoulder injury incurred during that period of ADT, it is considered active service for disability compensation purposes. 38 U.S.C. § 101(24). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal for additional development in June 2019. VA treatment records and service records, including orders corresponding with periods of ADT, were associated with the file, and the requested medical opinions were obtained in July 2019 and August 2019. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2019 the Board also granted reopening of the claim for service connection for a bilateral hearing loss disability and remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU). As the grant of reopening constitutes a full grant as to that aspect of the appeal, new and material evidence need not be addressed here. Ab v. Brown, 6 Vet. App. 35 (1993). As to the claim for TDIU, while on remand the RO granted entitlement to TDIU in a March 2020 rating decision. As this constitutes a full grant of the benefit sought as to the formal claim for TDIU, that issue is no longer on appeal. Id. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2018. A transcript of the hearing is of record. 1. Entitlement to service connection for a bilateral hearing loss disability. Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) 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, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required 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 or a diagnosis including the word “Chronic.” 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. 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). With respect to the left ear, VA audiological evaluations from October 2015, July 2019 and August 2019, as well as a July 2015 private audiogram, all reflect that the Veteran has hearing loss in his left ear that is considered to be disabling for VA purposes. 38 C.F.R. § 3.385. As to the right ear, however, all of these audiological evaluations reflect that the Veteran does not have hearing loss in the right ear that is disabling. Id. Each report shows that the Veteran does not have one auditory threshold at 40 or more or three or more thresholds at 26 or more. Id. Further, the Veteran’s speech discrimination scores have at no point been less than 94 percent in the right ear. Id. While treatment records reflect diagnoses of bilateral hearing loss, the mere presence of hearing loss does not mean that a hearing loss disability for VA purposes is present. As all of the objective audiological testing of record reflects that the Veteran does not have right ear hearing loss that is disabling for VA purposes, service connection is not warranted for right ear hearing loss on any basis. Brammer, 3 Vet. App. at 225. However, even if the Board were to assume for the purposes of argument the presence of a bilateral hearing loss disability, the preponderance of the evidence is against a finding that the hearing loss is causally related to an in-service injury or disease. The Veteran has reported that he was exposed to significant amounts of vehicle noise during active service and in the reserves, which is corroborated by the Veteran’s personnel records which reflect that he served as a heavy equipment engineer. Thus, noise exposure in service is conceded. However, the preponderance of the evidence is against a finding that the Veteran’s hearing loss is causally related to such noise exposure. While the Veteran has asserted that his hearing loss is directly due to this noise exposure, the Veteran does not have the medical training and expertise necessary to provide a competent opinion as to the etiology of his hearing loss. Jandreau, 492 F.3d 1372. As such, these assertions are entitled to no probative weight. To the extent the Veteran has asserted that he has experienced continuous hearing loss since his service, these statements are inconsistent with other statements of record. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, the Veteran denied any problems with hearing loss on June 1972, March 1973, June 1978, October 1979, September 1982 and October 1986 reports of medical history. Following his separation, treatment records from January 2007, May 2007, July 2007, and November 2007 reflect that the Veteran reported no changes in his hearing and no hearing loss. An October 2009 review of systems specifically noted that there were no issues with hearing loss or tinnitus reported. In light of the significantly inconsistent nature of the Veteran’s statements as to the onset and continuity of his hearing loss, the Board finds that the Veteran’s statements concerning continuity of symptoms since service are not credible and are therefore entitled to no probative weight. Id.; see Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). VA obtained medical opinions concerning the etiology of the Veteran’s bilateral hearing loss in October 2015 and July 2019. The October 2015 examiner stated that it was less likely than not that the Veteran’s hearing loss was causally related to his service, as there was no evidence of threshold shifts in service and scientific research has not provided evidence supporting the conclusion that noise induced hearing loss may have a delayed onset. However, the examiner also based the conclusion at least partially on the fact that the Veteran’s military noise exposure only continued up until February 1980, when in fact the Veteran continued to serve in the reserves after that date. As the examiner did not consider that the Veteran continued to serve in the reserves after February 1980, the opinion is based on an inaccurate factual premise and is therefore entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 460–61 (1993). The July 2019 examiner stated that it was less likely than not that the Veteran’s bilateral hearing loss was causally related to his service. The examiner first noted that the audiograms from throughout the Veteran’s reserve service were all within normal limits and did not reflect any significant threshold shifts. The examiner further noted that post-service treatment records consistently noted that the Veteran denied any hearing loss until 2015. The examiner then noted that medical research has shown that there is insufficient scientific basis to conclude that permanent noise-induced hearing loss will develop long after the noise exposure at issue. There is no evidence that the July 2019 examiner was either not competent or credible. Further, the examiner supported the opinion with citations to the medical evidence of record and medical literature concerning the development of noise-induced hearing loss. As such, the Board finds that the July 2019 opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records are silent for any reports of hearing loss prior to approximately 2015. The Veteran reported that his hearing was okay in a January 2007 treatment records, and as discussed above repeatedly denied any issues with hearing loss or hearing changes from that point forward. Records from 1990 to 2007 are silent for any complaints of hearing loss, despite treatment for a variety of health issues, including neurologic problems related to a potential traumatic brain injury. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss disability is causally related to noise-exposure during his active or reserve service. The Veteran’s assertions of a direct causal connection are not competent and his statements concerning continuous symptoms are not credible as they conflict directly with the prior statements given to healthcare providers both during service and following service. Walker, 708 F.3d 1331.As such, these statements are entitled to no probative weight. On the other hand, as discussed above the July 2019 negative opinion was well supported with citations to both the medical evidence of record and medical literature concerning the likelihood of delayed onset hearing loss. Further post-service records reflect consistent denials of hearing loss or hearing changes until 2014 or 2015, when the Veteran first requested an audiological consultation. As the preponderance of the evidence is against a nexus, service connection for a bilateral hearing loss disability is not warranted. 38 C.F.R. §§ 3.102, 3.303. Sensorineural hearing loss is considering to be an organic disease of the nervous system, and therefore the presumption in favor of chronic diseases is applicable in this case. 38 C.F.R. §§ 3.307, 3.309(a). However, there is no evidence that the hearing loss manifested to a compensable degree within one year following discharge. The Veteran’s in-service audiograms reflect that his hearing was within normal limits and he specifically denied any hearing loss on all reports of medical history. Post-service treatment records do not reflect any reports of hearing loss until approximately 2015, and in fact reflect that the Veteran consistently denied any changes in his hearing January 2007 through 2015. As such, there is no competent and credible evidence that the bilateral hearing loss disability manifested to a compensable degree within the one-year presumptive period or has been continuous since service. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran has alternatively asserted that his bilateral hearing loss disability is due to his service-connected rhinitis. 38 C.F.R. § 3.310. While the Veteran has asserted that there is a causal relationship between his rhinitis and his hearing loss, he does not have the medical knowledge and training necessary to provide a competent opinion as to the etiology of his hearing loss. Jandreau, 492 F.3d 1372. As these statements are not competent, they are entitled to no probative weight. VA obtained medical opinions concerning secondary service connection in August 2019. The first examiner stated that it was less likely than not that the Veteran’s rhinitis caused or aggravated his hearing loss. The examiner first noted that the Veteran’s sensorineural hearing loss is not the type of hearing loss that would be associated with Eustachian tube or middle ear pathology. The examiner further noted that on examination the Veteran had normally functioning tympanic membranes and middle ear systems, which also would not be consistent with hearing loss attributable to effects from the nose, sinus, or middle ear cavity. The July 2019 examiner stated that the Veteran’s hearing loss was not caused or aggravated by rhinitis. Based on common medical knowledge, the examiner stated that nasal stuffiness, allergies or a deviated septum does not result in hearing loss. To illustrate the point, the examiner noted that individuals who cannot breathe through the nose at all, such as individuals with a laryngectomy or even an individual whose nose is simply held shut, are still able to hear normally. There is no evidence that any of the above examiners were either not competent or credible. Further, the examiners based their opinions on the nature of the Veteran’s current disability, its presentation upon objective observation, and its likely causes. As such, the Board finds that the opinions are entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. Based on the above, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss disability was caused or aggravated by the service-connected rhinitis. The only competent evidence of record concerning causation and aggravation are the two VA medical opinions, which both state that based on the nature of the Veteran’s hearing loss disability it is less likely than not caused or aggravated by the rhinitis or deviated septum. While the Veteran has asserted that the disabilities are related, these statements are not competent. There are no other opinions of record indicating that the rhinitis and bilateral hearing loss are related. As such, service connection for a bilateral hearing loss disability as secondary to service-connected rhinitis is not warranted. 38 C.F.R. §§ 3.102, 3.310. The preponderance of the evidence weighs against a finding that the Veteran’s bilateral hearing loss disability is causally related to his service or was caused or aggravated by another service-connected disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.