Citation Nr: 20021713 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-35 137 DATE: March 26, 2020 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran’s right ear hearing loss disability 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 right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1966 to September 1969 and from September 1977 to August 1980. He received the Vietnam Service Medal with one Silver Star, the Vietnam Campaign Medal, and the Vietnam Cross of Gallantry with Palm as well as other medals. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for right ear hearing loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases (such as sensorineural hearing loss) will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. A VA examination conducted in March 2018 shows a diagnosis of right ear sensorineural hearing loss and audiometric findings which satisfy the requirements of 38 C.F.R. § 3.385. Thus, the Veteran’s current right ear hearing loss is considered a disability for VA purposes. Service treatment records do not show a right ear hearing loss disability manifested during service. However, the Veteran’s DD Form 214’s reflect military occupational specialties (MOS) including cannon fire direction specialist, legal clerk, and crane operator. One of his DD 214’s shows receipt of the Vietnam Service Medal with one Silver Star, the Vietnam Campaign Medal, and the Vietnam Cross of Gallantry with Palm as well as other medals. The Silver Star is evidence of combat participation. The Veteran’s service personnel records show he had two tours in Vietnam and participated in several campaigns while there. Thus, noise exposure is conceded. 38 U.S.C. § 1154(b). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). The provisions of 38 U.S.C. § 1154(b) do not establish a presumption of service connection for a combat veteran, but ease or lessen the combat veteran's burden of proof for demonstrating the occurrence of some in-service incident to which the current disability may relate. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Wade v. West, 11 Vet. App. 302, 304-05 (1998); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). The remaining question then, is whether the Veteran’s current right ear hearing loss disability is causally related to his in-service noise exposure. In March 2018, the Veteran underwent a VA examination. The examiner noted that the Veteran reported excessive noise from his first tour of duty when he worked for a lighting company building landing zones. She also noted that the Veteran reported noise exposure from grenades, rockets, artillery, and various combat noises during his service in Vietnam. The examiner opined that the Veteran’s current right ear hearing loss disability is less likely than not caused by or a result of an event in military service. She explained that comparison of induction and separation audiometric examinations showed no significant change in hearing sensitivity, hearing was normal from entrance separation, with no significant shift in threshold during military service. She further noted that the Veteran reported excessive noise exposure working automotive and trucker repair jobs without hearing protection after service, as well as some short-term factory jobs. The Veteran also reported recreational noise from drag raising. The examiner’s unfavorable opinion is persuasive and there is no competent medical opinion to the contrary. Although the Veteran’s lay assertions, in his capacity as a combat Veteran, are competent and credible, he does not have the expertise to opine as to the etiology of his right ear hearing loss disability. That is, the Veteran’s lay opinion that his current right ear hearing loss disability is due to to noise exposure in service is not competent evidence sufficient to establish service connection. This is a complex medical question for which medical expertise is required. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009); Jandreau v. Shinseki, 492 F.3d 1372 (2007). The Veteran has not provided evidence showing that he has the requisite medical expertise or training to determine the etiology of his current hearing loss disability. His unsupported lay assertion is thus outweighed by the competent VA medical opinion. (Continued on the next page)   While the sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309 (a), it was not shown as chronic in service or within a presumptive period; and was not shown to have manifested to a compensable degree within a presumptive period. Indeed, the Veteran’s Report of Medical History completed at discharge show that he denied hearing loss in June 1980 and the objective audiometric findings, as shown on the Report of Medical Examination, did not demonstrate a sensorineural hearing loss disability per 3.385. Therefore, service connection may not be presumed. 38 C.F.R. § 3.307, 3.309(a). The Veteran has not reported any continuity of symptomatology such that consideration is warranted under 38 C.F.R. § 3.303 (b). As the preponderance of the evidence is against the claim, service connection for a right ear hearing loss disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.