Citation Nr: 20022580 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-23 292 DATE: April 1, 2020 ORDER The claim of entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The Veteran’s claimed bilateral hearing loss disability did not have its onset during service, is not causally related to active service, and did not manifest within one year after separation from active service. 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 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385, 4.3 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from February 1953 to January 1956 and from March 1957 to March 1960. The Veteran contends that he is entitled to service connection for a bilateral hearing loss disability. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in January 2015. A statement of the case (SOC) was issued in April 2016, and the Veteran perfected his appeal in May 2016. The Veteran testified before the undersigned at a hearing in January 2019. A transcript of the hearing is of record. This case was first before the Board in March 2019. In the March 2019 Board decision, the Board denied the Veteran’s claim of service connection for a bilateral hearing loss disability. The Veteran appealed the Board’s March 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties). The Parties found that the Board did not provide adequate statement of reasons or basis. Specifically, the Board relied on a November 2014 VA examination, which found that the Veteran had significant post-service noise exposure. However, in the January 2015 NOD, the Veteran denied any post-service noise exposure that would affect his hearing. The Parties found that remand was required for the Board to discuss this evidence. The case has been returned to the Board at this time for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, 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’- the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including sensorineural hearing loss and tinnitus (organic diseases of the nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Even if the presumptive paths for establishing service connection are not available for the Veteran’s disability, the claim could be granted if the three elements of direct service connection are shown by an equipoise standard of evidence. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Hearing Loss Disability The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For purposes of VA service connection and compensation, a hearing loss disability is determined through audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. Service connection may not be found for disability due to hearing loss or impaired hearing unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. At the Veteran’s November 2014 VA examination, the VA examiner found that the Veteran had bilateral sensorineural hearing loss. The Veteran’s right ear puretone thresholds at 500, 1,000, 2,000, 3,000, or 4,000 Hz were 30, 65, 60, 65, and 65 dB, respectively. His left ear puretone thresholds at 500, 1,000, 2,000, 3,000, or 4,000 Hz were 45, 70, 65, 65, and 70 dB, respectively. His right ear speech recognition was at 75 percent, and his left ear speech recognition was at 56 percent. Thus, the Veteran fulfills the first requirement of service connection – a current disability. See 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The next question in this case is whether the Veteran had an incurrence or aggravation of bilateral hearing loss during his active service. 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Looking at the Veteran’s service treatment records (STRs), in the Veteran’s Reports of Medical Examination from examinations in January 1953, January 1956, March 1957, and February 1960, the examiners’ clinical evaluations mark the Veteran’s ears and eardrums as normal. The examiners at these examinations did not record the Veteran’s puretone thresholds. Instead, they conducted whisper tests, which came out normal. In the Veteran’s Reports of Medical History from the examinations in January 1953, January 1956, March 1957, and February 1960, the Veteran reported that he had never experienced ear trouble. The record contains no complaints, diagnosis, or treatment of hearing loss in the Veteran’s STRs or other medical evidence from the Veteran’s active service. However, in the January 2015 NOD and an accompanying statement, the Veteran reported that he had noise exposure during service while working as a high-speed radio operator. He performed work sending and receiving Morse code messages. When training for this position, the Veteran stated that he spent eight hours a day, five days a week, with headsets on. He reported that, after this training, he was assigned as a Morse monitor for two years in Japan; and this position required that he work 12-hour shifts monitoring an assigned radio frequency, recording everything he heard. He stated that he was not allowed to remove his headset unless there was someone to relieve him. He further stated that, during his second period of active service, he was assigned to the Army Security Agency School at Ft. Devens as an instructor, and he wore headsets while working. Additionally, he was required to complete firearms training, and he was qualified as an expert in Carbine firearms and M1 rifles. He also attended the NCO Academy at Fort Dix, New Jersey, which required extensive firing of weapons; he stated that he did not use protective ear coverings. He also stated that, after his active service, he did not work in any kind of employment that exposed him to noise that would have affected his hearing. Specifically, he reported that he worked in retail sales for two years and as a milkman for 12 years. After this, he earned an MBA degree and worked as a marketing executive until retiring in 1989. He stated that he was not involved in any sports or leisure activities that would have caused hearing problems; and he has had a very quiet, sedate, and uneventful life since leaving active service. The Veteran’s military personnel record reflects that he worked as a Morse monitor, high-speed radio operator, and communications instructor during service. His record also indicates that he was qualified in Carbine firearms. The Veteran is competent to give evidence where he has knowledge of facts or circumstances and where he conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). As such, the Board accepts that the Veteran was exposed to loud noise in service. Therefore, this issue turns on the third element of service connection — the “nexus” requirement — and whether the Veteran’s currently diagnosed bilateral hearing loss disability is causally related to his in-service noise exposure. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is no evidence of record concerning any hearing loss from the year immediately following the Veteran’s service. Thus, service connection may not be presumed here based on manifestation within one year of discharge from active service. The one-year presumption for sensorineural hearing loss under 38 C.F.R. §§ 3.307 and 3.309 is therefore not applicable in this case. See 38 U.S.C. §§ 1101, 1112. The first post-service mention of possible problems with hearing loss in the objective evidence of record is a January 2002 VA Multidisciplinary Note that mentions that the Veteran is hard of hearing. There is no objective evidence of record demonstrating any complaint, diagnosis, or treatment of hearing-related problems in the 42 years between the Veteran’s February 1960 separation from active service and the above-mentioned January 2002 VA Multidisciplinary Note. Under Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim such that it weighs against the claim. In the January 2014 statement and at the January 2019 Board hearing, the Veteran mentioned that he purchased his own hearing aids in 1998; and his medical records reflect that his first hearing aids were privately purchased. However, this purchase was still 38 years after his active service. At the November 2014 VA examination, the VA examiner determined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) caused by or a result of his active service. The VA examiner observed that the Veteran’s whisper test was normal at separation from active service; though she noted that the whisper test is insensitive to high frequency hearing loss. As frequency specific hearing tests with calibrated audiometrics were not available at separation, association of cause of the hearing loss could not be established. The VA examiner explained that the Veteran had a significant history of noise exposure with recreational activities over the years. As noted earlier, the Veteran denied any professional or recreational post-service noise exposure that would have affected his hearing. At the January 2019 Board hearing, the Veteran said he was too busy supporting his family to engage in such recreational activity. In the November 2014 VA examination report, the VA examiner acknowledged that the Veteran did not have post-service occupational noise exposure. However, the Veteran reported that he had noise exposure in his use of lawn equipment without hearing protection. The VA examiner listed this as recreational noise exposure. Thus, when the VA examiner found that the Veteran had years of recreational noise exposure, this is what she was referring to. Even if the Veteran did not engage in professional, leisure, or sport activities in which he would have been exposed to loud noise, he was exposed to loud lawn equipment at home. The VA examiners’ findings described above are largely consistent with the other medical evidence of record. In a June 2011 Audiology Consult, the examiner found that the Veteran had hearing loss consistent with a normal progressive loss due to age (presbycusis). The Veteran also reported that he had a family history of hearing loss in his father. The Board acknowledges the Veteran’s contention that his current claimed bilateral hearing loss disability is related to his active service. However, the cause of hearing loss is a complex medical question and not within the knowledge of a lay person or determinable by observation with one’s senses. The Veteran, as a layperson, is not competent to give a medical opinion on the etiology or cause of his hearing loss, which occurred many years after his in-service noise exposure. The Veteran lacks the adequate medical expertise to render a medical opinion as to the etiology or cause of his diagnosed disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). As such, the Veteran’s assertions as to the origins of his bilateral hearing loss disability are not competent or probative evidence to determine whether there is a “nexus” or causal relationship between his current bilateral hearing loss disability and his in-service noise exposure. Moreover, the Board finds the opinion of the November 2014 VA examiner to be the more probative evidence of record concerning whether the Veteran’s current bilateral hearing loss disability is causally related to his active service. The November 2014 VA examiner’s rationale is logical and well-reasoned and based on consideration of the Veteran’s claims file, reported history, STRs, and post-service history. Thus, the Board is satisfied that the November 2014 VA examiner’s opinion is competent, credible, persuasive, and probative for deciding this appeal. The Board acknowledges the Veteran’s representative’s statement, in a June 2016 brief, that a new VA examination should be obtained to determine the current severity of the Veteran’s hearing loss, as his last examination was in 2014. However, the severity of the Veteran’s hearing loss is not in question. The Board has found that the Veteran has a current hearing loss disability for VA purposes. The question before the Board is whether this disability is related to his active service. The 2014 VA examination contains an adequate opinion on this issue. As such, a new examination is not required. Based on the above, the evidence of record does not demonstrate that the Veteran’s current bilateral hearing loss disability is causally related to his in-service noise exposure. Thus, the Veteran does not fulfill the third requirement of service connection – the “nexus” requirement. See 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In sum, although the Veteran may have a current bilateral hearing loss disability and exposure to noise during his active service, the preponderance of the evidence of record is against finding that the Veteran’s current bilateral hearing loss disability was incurred in, aggravated by, or otherwise the result of his active service. Therefore, the Veteran’s claim of entitlement to service connection for a bilateral hearing loss disability must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. (Continued on the next page)   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. JAMES G. REINHART 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.