Citation Nr: 20022455 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 17-54 846 DATE: March 31, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence fails to establish the Veteran’s current bilateral hearing loss is related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1968 to February 1973. In November 2019, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board of Veterans’ Appeals (Board) notes that the Veteran’s claim was initially denied in an August 2013 rating decision. At the time the Veteran’s claim was denied, the Regional Office (RO) informed the Veteran that the rating decision was a provisional decision. The Veteran was not informed of his appellate rights. Although the Veteran appealed the August 2013 rating decision, the RO correctly found that the decision was not a final decision, and thus new and material evidence was not necessary to readjudicate the claim. Accordingly, the RO denied the claim in a June 2016 rating decision, which was properly appealed to the Board. As such, the Board considers this a claim for service connection rather than an application to reopen a previously denied claim. 1. Service connection The Veteran contends that his bilateral hearing loss was caused by hazardous noise exposure. See Hearing Transcript. Specifically, the Veteran has asserted that he was exposed to hazardous noise exposure during service because his military occupational specialty (MOS) was an engine mechanic who worked on diesel powered mine sweepers, and he also reported that he worked as a diesel mechanic on motorized equipment. Id. Legal Criteria 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. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background The Veteran’s May 1968 entrance examination indicated a normal clinical examination of the ears. See Service Treatment Records (STRs)-Medical. The audiological examination revealed normal hearing. The authorized audiological evaluation taken at that time, revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 NA 5 LEFT 0 0 0 NA 5 The Veteran was provided another audiological evaluation in November 1972. The audiogram showed, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 15 10 LEFT 30 5 5 20 15 See STR-Medical. The Veteran also had 15 out of 15 hearing on whispered voice testing in his bilateral ears. In the January 1972 separation examination, the Veteran’s underwent another audiological examination. The authorized audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 15 10 LEFT 30 5 5 20 10 See January 1973 Report of Medical Examination. The Veteran whispered voice test was 15 out of 15 bilaterally. Id. The earliest post-service treatment record relating to the Veteran’s claim, in the claims file is from January 1997. The Veteran was provided a private audiological examination by Dr. G.S., F.A.C.S. at that time. See January 1997 Private Treatment Record. The audiogram revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 20 25 5 LEFT 25 10 5 20 20 There was no speech recognition testing. Id. In January 2012, the Veteran underwent another private audiological examination. See January 2012 Private Treatment Record. The audiogram indicated pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 20 30 25 LEFT 20 15 10 30 30 There were no speech recognition test results reported. The Veteran was provided a VA examination in July 2013. See July 2013 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The audiogram indicated pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 25 25 20 LEFT 15 10 15 35 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The VA examiner diagnosed the Veteran with bilateral hearing loss. The Veteran denied loud noise exposure prior to active service. He reported loud noise exposure during service from “working in the engine room on a diesel powered mine sweeper and from machine guns.” Id. He further reported post-service occupational and recreation noise exposure including leaf blowers and gun fire. The examiner concluded that the Veteran’s hearing loss was not at least as likely as not due to the Veteran’s military service because there was no evidence of a significant threshold shift at separation. The examiner also stated that the Veteran’s hearing was within normal limits during the 1972 and 1973 service audiological evaluations, which she concluded “is not consistent with noise exposure.” Id. She further asserted that “there was no significant decrease in thresholds for the right ear from entry to exit.” Id. A private audiological evaluation from June 2016, shows pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 35 35 35 LEFT 20 10 15 40 35 Analysis The Board finds that based on the evidence of record, the Veteran has current diagnosis of bilateral hearing loss. Notably, the Veteran was diagnosed with hearing loss during the July 2013 VA examination. Additionally, the June 2016 private audiogram shows that the Veteran’s hearing loss meets the standard for hearing loss). 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. Thus, the first element of service connection, a current disability, has been met. Regarding the second element of service connection, an in-service occurrence, the Board notes that the Veteran’s competent and credible lay statements as well as MOS as engine mechanic indicate that he was exposed to loud noise during service. As such, the second element of service connection, an in-service occurrence, is met. Unfortunately, the third element, the nexus, which is the connection between a current disability and an inservice event has not been met. Specifically, the evidence of record does not demonstrate that the Veteran’s hearing disability is related to service. Notably, the VA examiner opined that the Veteran’s hearing loss was less likely than not related to service because there was no significant threshold shift in hearing from entrance to separation from active service. The Board also acknowledges the Veteran’s contention that his current bilateral hearing loss was caused by his in-service military noise exposure. However, while lay persons are competent to provide opinions on some medical issues. (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the Board finds the specific issue here, the etiology of his sensorineural hearing loss, which was diagnosed decades after active service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 (2007). Essentially, the record does not demonstrate that the Veteran has special training or acquired any medical expertise in evaluating sensorineural hearing loss or tinnitus was due to his military noise exposure, which the Veteran stated in his testimony and lay statements. See King v. Shinseki, 700 F.3d 1339, 1345 (2012). Because the VA medical opinion, which was unable to link the Veteran’s current hearing loss to his in-service noise exposure, was based on medical expertise and review of the record it carries more probative weight. Accordingly, the preponderance of the evidence weighs against a finding that the Veteran’s current bilateral sensorineural hearing loss is related to his service. As such, service connection is denied on a direct basis. The Board also considered whether the Veteran’s bilateral hearing loss could be service connected on a presumptive basis. As bilateral hearing loss (as an organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.309(a), the Board considered whether chronic symptoms in service or continuity of symptomatology since service have been shown. The Board finds that the evidence does not show that symptoms of bilateral hearing loss were chronic in service, were continuous since service, and were not shown to a compensable degree within one year of service. Indeed, the record reflects that the Veteran was not diagnosed with sensorineural hearing loss and tinnitus until 1997, which is over 20 years. See, e.g., January 1997 Private Treatment Record. Thus, based on the record, there is no indication that the Veteran had hearing loss during service or within one year of separation from service. See also Maxson v. Gober, 230 F.3d 1330 (2000) (finding that a prolonged period without medical complaint, and the amount of time that elapsed since service can be a factor for consideration in rebutting the presumption of service connection). Although the Board, once again, acknowledges the Veteran’s lay statements that his current hearing loss is related to his in-service noise exposure from working near diesel powered mine sweepers and motorized equipment, the Board finds that the Veteran is not competent to medically attribute his bilateral sensorineural hearing loss to his in-service noise exposure; such an etiology determination requires medical expertise, which the record does not show he has. See 38 C.F.R. § 3.159 (a)(1) versus (a)(2). Thus, chronicity and continuity of the bilateral hearing loss and tinnitus since service are not established. Based on the above, the Board finds that service connection for bilateral hearing loss is not warranted on either a presumptive or direct basis. In reaching this conclusion, the Board considered the applicability of the benefit-of- the-doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gunella Lilly, 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.