Citation Nr: 20031963 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 19-25 612 DATE: May 6, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current bilateral hearing loss had onset in service, is otherwise related to an in-service injury or disease or that it manifested to a compensable degree within a year after separation from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1973 to March 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a period of war or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In September 2018, the Veteran underwent a VA audiological evaluation. At that time, a hearing test showed puretone thresholds that demonstrated a bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. Therefore, a current disability has been shown. The examiner also appears to have conceded the Veteran’s in-service noise exposure; the Board finds that the Veteran’s reports of acoustic trauma are consistent with the nature and circumstances of the Veteran’s service. See 38 C.F.R. § 3.104(c); VA Examination (Sept. 2018), supra, at Question No. 3. The last remaining question is whether a nexus can be established between the Veteran’s in-service noise exposure and his current bilateral hearing loss disability. For the reasons below, unfortunately, the Board ultimately concludes that no such nexus exists. The Board has first considered whether service connection for hearing loss is warranted on a presumptive basis, to include on the basis of continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested such a condition to a compensable degree within the year following his discharge from active duty service. The Board notes May 2011 and October 2014 entries in the Veteran’s post-service treatment records, at which time he specifically denied hearing loss. Ultimately, the Board concludes that the Veteran’s bilateral hearing loss did not manifest as disabling for VA purposes, let alone compensable, until November 2015 at the earliest. See generally VA Treatment Records. Therefore, the Board finds that presumptive service connection for bilateral hearing loss as an organic disease of the nervous system, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board has also considered whether the Veteran may be entitled to service connection for bilateral hearing loss on the basis of an in-service injury. The Board has fully considered both of the Veteran’s available in-service audiograms ( April 1, 1973, i.e.: enlistment examination; December 9, 1975, i.e.: separation examination) within his service treatment records; as described below, neither one evinces entitlement to service connection. 38 C.F.R. § 3.385. These results are both explicitly listed as being reported in ISO-ANSI units; therefore, no conversion from the ASA standard is warranted. The Veteran’s audiogram results from his April 1973 enlistment examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 X 10 LEFT 5 5 5 X 5 The Veteran’s audiogram results from his December 1975 separation examination are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 5 X 0 LEFT 15 10 5 X 0 There are no other in-service audiograms of record. As such, no in-service audiogram evinces one audiometric reading in excess of 26 decibels at any testable frequency at any time—let alone three in one audiogram, or one reading of at least 40 decibels at any testable frequency at any time. See 38 C.F.R. § 3.385. The Board additionally notes that on both above occasions, the Veteran was graded as 111111 on the PULHES scale, further indicating that the Veteran did not exhibit hearing loss upon separation. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (PULHES is the six categories into which a physical profile and reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina in hearing (“H”); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). Finally, the Board cannot ignore evidence that upon separation, the Veteran specifically denied having ever had or currently having hearing loss; however, he did endorse five other symptoms. See Report of Medical History (Dec. 9, 1975), at Question No. 11. As to direct service connection, the September 2018 VA examiner opined that it was less than likely that not (50 percent probability or greater) that the Veteran’s hearing loss was caused by or a result of an event in service. The examiner cited to the above two in-services audiograms, a distinct lack of evidence suggesting an in-service auditory injury or any contemporaneous complaint of hearing loss, and a scientific consensus that “a noise-induced hearing loss will not progress once it is stopped.” This opinion is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This opinion is therefore afforded substantial probative weight. There is no contrary probative opinion of record. While the Board concedes that the Veteran is competent to attest to some observable symptoms, the Board cannot ignore evidence against his claim, including but not limited to the facts that (a) the Veteran never made a contemporaneous complaint of any symptom consistent with hearing loss until November 2015, and (b) he denied hearing loss in both May 2011 and October 2014. The Board places greater weight of probative value on the history the Veteran presented to medical professionals for treatment purposes than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In addition, the Veteran’s history of prior inconsistent statements weighs against his credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran). As a lay person, the Veteran would not be competent to render an opinion regarding the etiology of his bilateral hearing loss. In this regard, the matter of medical causation of such a disorder is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, the causation of the bilateral hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of specialized testing such as audiometric testing. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Nevertheless, the Veteran has not offered any lay statements of this sort, while a qualified VA examiner has supplied an uncontested nexus opinion against his claim. Notwithstanding the above, only in the Veteran’s December 2018 Notice of Disagreement (and never prior) did the Veteran state that “I have always had defective hearing. It has continued to worsen over a period of time. I was not given an exit examination for my hearing. My hearing loss is connected to my military service.” The evidence of record, as detailed above, plainly shows that the Veteran was afforded a separation examination with audiometric testing, the audiogram showed no hearing loss disability for VA purposes, and that he continuously denied hearing loss from separation until November 5, 2015, when “He reported noticeable decrease in hearing acuity.” The Board has fully considered the Veteran’s argument, but concludes that it is without merit. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s current bilateral hearing loss was caused by or incurred in service. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable, and the Board must deny the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.