Citation Nr: 20021960 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 14-06 409 DATE: March 30, 2020 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT There is no probative medical evidence indicating the Veteran’s current bilateral hearing loss disability was incurred in service, or diagnosed within the presumptive period after discharge. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1968 to December 1970. In a June 2018 Board decision, the Board granted the Veteran’s claim of service connection for tinnitus. The issue of service connection for this disability is no longer in appeal status. The case was remanded in July 2015 and June 2018 for evidentiary development and for new medical examinations. The Veteran was requested to submit properly signed forms in order to obtain additional private medical records. To date the Veteran has not submitted these forms. Furthermore, an additional VA medical examination was scheduled due to two previous examinations that could not determine the severity and etiology of the Veteran’s bilateral hearing loss disability. The Veteran failed to appear for the scheduled examination and has not provided a statement of good cause or request to reschedule. While VA has a duty to assist the Veteran in developing evidence pertinent to his claim, the Veteran also has a duty to assist and cooperate with VA in developing this evidence. 38 C.F.R. § 3.159 (c). The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991); see also 38 C.F.R. § 3.655 (when a claimant fails to report for an examination scheduled in conjunction with a supplemental claim for a benefit previously disallowed, the claim shall be denied). VA has satisfied its duty to notify and assist and the Board may proceed with appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b) are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss, as an organic disease of the nervous system, is a “chronic disease” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for bilateral hearing loss Private treatment records indicate the Veteran was diagnosed with bilateral sensorineural hearing loss in February 2012. The Veteran’s January 1968 report of medical history at enlistment indicates he denied hearing loss. His clinical audiological evaluation was normal. In August 1970 the Veteran complained of right ear pain and was diagnosed with right ear external otitis (ear infection). He was advised to keep the ear canal dry. There are no audiological findings at his December 1970 separation examination. In a February 2012 statement the Veteran reported that at separation he indicated he had hearing loss. He stated he was unable to attend an audiological examination at a nearby VA medical center (VAMC) soon after discharge but that he experienced hearing loss since service. The Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis. See Layno, 6 Vet. App. 465, 469; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, since sensorineural hearing loss requires specialized training for determinations as to diagnosis, causation, and the determination of whether the claimed hearing loss is a disability within the meaning of the law, it is therefore not susceptible to lay opinions on etiology, the Veteran is not competent to diagnosis himself with a hearing loss disability nor render a nexus opinion as to its causation. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran also contends that he experienced acoustic trauma while in service. The Veteran’s military occupational specialty (MOS) was as a light truck driver and has a high probability of exposure to hazardous noise. Therefore, the Veteran’s noise exposure is recognized. See 38 U.S.C. § 1154 (a). At the October 2012 VA medical examination, the examiner noted the testing results were not being reported because they were invalid. The examiner indicated the Veteran demonstrated poor consistency of responses and poor inter-test agreement between communication ability and test performance. The examiner also noted that the Veteran was reinstructed and retested several times with no improvement in the results. No diagnosis or opinion regarding etiology was provided. At the September 2015 VA medical examination, the examiner noted that the Veteran’s responses were inconsistent and considered invalid. The examiner reported that the Veteran was reinstructed as to proper response protocol and retested, but that since the responses did not improve, the test was terminated. No diagnosis or opinion regarding etiology was provided. The preponderance of the evidence is against finding service connection for bilateral hearing loss. There is no probative medical evidence that indicates the Veteran’s current bilateral hearing loss disability was incurred in service, or diagnosed within the presumptive period after discharge. The Veteran has continuously asserted throughout the appeal that his current bilateral hearing loss disability is a result of in-service ear injury and/or his recognized hazardous noise exposure. As noted above, the Veteran is competent to report observable symptomatology of his condition and to relate a contemporaneous medical diagnosis, but he is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current sensorineural hearing loss diagnosis and its relationship to his service. Since the Veteran’s bilateral hearing loss disability was not incurred in service or diagnosed within the presumptive period after discharge, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.