Citation Nr: 20031981 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 19-15 078 DATE: May 6, 2020 ORDER Entitlement for service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s military occupation specialty (MOS) exposed him to excessive noise during active service. 2. The current disability of left ear hearing loss is not caused by an event, injury or illness during active service, nor is it etiologically related to it. 3. The left ear hearing loss did not manifest to a compensable degree within one year of separation from active service. 4. There was no aggravation of the pre-existing right ear hearing loss as there is no evidence of in-service worsening of the disability. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 1153, 5107 (as in effect prior to Feb. 19, 2019); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1977 until May 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Entitlement to Service Connection The Veteran is seeking entitlement to service connection for bilateral hearing loss due to in service noise exposure. The Veteran asserts in his Form 9 Appeal and statements to the VA examiner that due to his position as an Aircraft Maintenance Specialist that he was subjected to an abundance of loud noises and was not provided adequate hearing protection. 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). The Board will also address presumptive service connection as applicable. 1. Current Disability The Board finds that the Veteran has a current disability of bilateral hearing loss. The Veteran underwent a March 2017 VA hearing examination in connection with his claim. The examination report contains audiometric testing results of puretone thresholds in excess of 40 decibels in the right ear at the 2000Hz, 3000Hz, and 4000Hz ranges, and in the left ear at the 4000Hz range. The Board finds the evidence establishes a current disability of bilateral hearing loss. See 38 C.F.R. § 3.385. The March 2017 VA hearing examination report also indicates the hearing loss is sensorineural in nature. 2. Presumptions of In-Service Incurrence or Aggravation VA considers sensorineural hearing loss an “other organic diseases of the nervous system” included among chronic diseases. 38 C.F.R. § 3.309(a). Such chronic diseases may be service connected on a presumptive basis if shown as “chronic” during service, manifested to a compensable degree in a specified period after service, or productive of continuous symptomatology since service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 38 C.F.R. § 3.303(b), 3.307, 3.309. A. Chronicity in Service For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. The Board finds that the Veteran’s bilateral hearing loss was not “chronic” in service. The Veteran’s service treatment records (STR’s) during his period of service contain audiometer results from March 1977 when he entered service and later in October 1978 and January 1979. The March 1977 audiometer results indicate the Veteran’s hearing in his left ear was within normal limits. The VA examiner noted that the entrance audiogram from March 1977 indicated left ear hearing loss, however this was not seen on the October 1978 or January 1979 audiograms or consistent with the March 2017 examination. The VA examiner opined the right and left ear were likely switched on the entrance audiogram, with the right ear hearing loss present at the time of entrance. The results are consistent across the October 1978 and January 1979 examinations as the Veteran’s hearing in his left ear remained within normal limits despite slight shifts in the threshold at 500Hz from 10dB to 15dB. As to the Veteran’s left ear, his STRs are absent for any complaint or diagnosis of left ear hearing loss. There is no indication from the service entrance examination report that the Veteran complained of symptoms of hearing loss or auditory problems in his left ear. The Veteran was seen for multiple complaints during service, including both illness and injury. At no time was reference made to hearing loss in his left ear. Periodic reexamination did not independently discover it. The Board finds there is not a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. B. Presumption of In-Service Aggravation The Veteran’s right ear hearing loss was noted on his entrance examination. As a result, service connection is not available on a causation theory. See 38 U.S.C. §§ 1111, 1153. As a result, the Board cannot find the right ear hearing loss was “chronic” in service because it preexisted service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To cause the presumption to attach, a veteran must show a worsening of a preexisting condition during the relevant period of service. Hill v. McDonald, 28 Vet. App. 243, 252-53 (2016); 38 C.F.R. § 3.306(b). The Board finds that the preexisting hearing loss did not increase in severity during service. As noted above, the Veteran’s STR’s contain audiometer results from March 1977, October 1978 and January 1979. The March 1977 audiometer results indicate that the Veteran had per-existing hearing loss in his right ear at the 4000 frequency, and this was noted on his entrance examination. Thresholds remain nearly consistent across the October 1978 and January 1979 examinations and do not indicate a worsening of the Veteran’s pre-existing hearing loss in his right ear. The STRs are absent for any complaint of worsening of the right ear hearing loss during the Veteran’s period of service. The Veteran has not provided any statements that his right ear hearing loss worsened during service, only that he had excessive noise exposure. In the absence of medical or lay evidence of worsening, the Board finds the right ear hearing loss did not increase during service. The presumption of aggravation does not attach. See Hill, 28 Vet App. at 252-53. C. Presumptions Regarding Post-Service Manifestations Service connection may also be granted on presumptive bases based on post-service manifestations. First, service connection may be awarded if the chronic disease not preexisting service is productive of symptoms continuously since service. 38 C.F.R. § 3.303(b). Second, service connection may be awarded if a sensorineural disability, including those preexisting service, is manifested to a compensable degree within one year of separation from service. See Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000). The Board finds that the left ear hearing loss has not been productive of symptoms continuously since service. The Veteran has not made any assertion of symptoms continuously present. Instead, his claim and comments recorded during the March 2017 VA examination are simply that he had noise exposure in service and has a hearing loss disability at present. The Board cannot read into the record evidence that does not exist. Thus, service connection is not warranted on this basis. 38 C.F.R. § 3.303(b). Next, the Veteran’s bilateral hearing loss was not manifest to a compensable degree within one year of service separation. There is no evidence regarding the severity of the hearing loss in either ear from the Veteran’s May 1980 separation from service to May 1981. The Board concludes service connection is not warranted on this basis either. There being no other presumptions available in this appeal, the Board resumes consideration of in-service incurrence or aggravation on direct service connection. See Shedden, supra. 3. In-service Incurrence or Aggravation of a Disease or Injury The Veteran is seeking entitlement to service connection for bilateral hearing loss due to in service noise exposure. The Veteran asserts in his Form 9 Appeal and statements to the VA examiner that due to his position as an Aircraft Maintenance Specialist that he was subjected to an abundance of loud noises and was not provided adequate hearing protection. The Board finds excessive noise exposure consistent with the conditions of service as an Aircraft Maintenance Specialist. 38 U.S.C. § 1154 (a). Thus, the Board finds the Veteran had excessive noise exposure during service. 4. Nexus between the current disability and the in-service disease or injury The remaining issue in this case is whether the current Veteran’s bilateral hearing loss may be related to his in-service injury or disease. See Shedden. For the reasons that follow, the Board finds the preponderance of the evidence is against a nexus. The Board finds that the Veteran’s current disability of bilateral hearing loss is neither caused nor aggravated by an event, injury or illness during active service, nor is it etiologically related to it. Although he worked as an Aircraft Maintenance Specialist, he was provided ear plugs and muffs. The Veteran’s left ear hearing loss was not present during service as noted on the October 1978 and January 1979 audiograms and only a slight shift in threshold was noted at 500Hz. Hearing loss was not diagnosed until March of 2017 and the record is silent for complaints of hearing loss until October 2016. The Veteran’s statements in support of his claim are not competent evidence of a nexus. First, the Veteran has not offered proof of medical training, experience, or expertise. He is a lay witness. See 38 C.F.R. § 3.159(a). Next, the Veteran has not offered a history of lay observable symptoms tracing his current hearing loss to in-service noise exposure or that a medical expert has told him that his hearing loss may be related to in-service exposure. Finally, he has not offered an opinion grounded in lay common knowledge that would relate the two. Instead, he offers at most the bald assertion that the two are related. The Board finds that this is not competent lay evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). The Veteran’s contentions are not supported by the remaining evidence of record that his hearing loss is related to an in-service event, injury, disease, or symptoms of a disease potentially related to a subsequent, now current, audiological disability. Approximately 36 years have passed since the Veteran’s active service and his first report of hearing loss for the purpose of his VA claim in October 2016. This factor weighs heavily against a finding of service incurrence, including by continuous symptoms. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). In March 2017 the Veteran had a VA examination. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The VA examiner noted that the Veteran worked as a jet engine mechanic in the military and wore ear plugs and muffs. The Veteran also worked approximately 25 years in a paper plant and was required to wear hearing protection. The examiner opined that the Veteran’s left ear hearing loss less likely than not caused by military noise exposure. The examiner provided rationale that there was no significant shift in the left ear for the first 2 years of military service and further noted the amount of noise exposure after military service. There was no separation audiogram available. The VA examiner opined that the Veteran’s left ear hearing loss less likely than not caused by military noise exposure as there was no significant shift in the left ear for the first 2 years of military service and that the Veteran was exposed to noise while working approximately 25 years in a paper plant and requiring hearing protection. (Continued on the next page)   The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against a nexus and, therefore, the claim. The doctrine is not applicable, and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Aubee, 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.