Citation Nr: 20032829 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 18-40 777 DATE: May 11, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss disability was not shown in service or to a compensable degree within one year of the Veteran’s discharge from service, and the most probative evidence indicates the Veteran’s current hearing loss is not related to his military service, to included conceded in-service exposure to acoustic trauma. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for bilateral hearing Service connection may be established 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. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a veteran served continuously for 90 days or more during active service and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, the disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a “disability” for the purposes of service connection. 38 C.F.R. § 3.385. “[I]mpaired 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. When audiometric test results do not meet the regulatory requirements for establishing a “disability” at the time of the Veteran’s separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran seeks entitlement to service connection for bilateral hearing loss as a result of in-service noise exposure. He has current bilateral hearing loss disability as defined by VA regulations and exposure to acoustic trauma during service has been acknowledged by the RO. As such, the question that remains is whether the Veteran’s bilateral hearing loss disability is related to service, to include his in-service exposure to acoustic trauma. The first indication that the Veteran met the criteria for bilateral hearing loss disability pursuant at 38 C.F.R. § 3.385 was in March 2018, during audiological testing conducted during a VA examination. At that time, the criteria were met based on a 40 decibel puretone threshold noted at 4000 Hertz bilaterally, and the examiner diagnosed sensorineural hearing loss. Since there is no competent evidence that the Veteran met the criteria for a bilateral hearing loss disability in service or within one year following his discharge from service, that basis for service connection is not met. The March 2018 VA examiner provided an opinion that it is less likely than not that the Veteran’s bilateral hearing loss is due to his military service. The examiner provided the rationale that there is normal hearing on separation with thresholds too low for any permanent significant shift in hearing threshold to have occurred from entrance. This is evidence of no permanent auditory damage on active duty. Further, the examiner noted that there was no report of decrease hearing in claims file or on separation. The examiner explained that although noise exposure is conceded and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage hearing loss are not conceded based on noise alone. Therefore, a nexus is not established. Lastly, the examiner notes that a review of entrance and separation audio results shows normal hearing with no indication of permanent positive threshold shift. The Board finds the March 2018 VA examiner’s opinion to be highly probative. The VA examiner’s opinion was based on entire review of the claims file, following examination of the Veteran and contained adequate rationale for the conclusions reached. Accordingly, the opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board specifically notes that the Veteran contends that his hearing loss began in service. While the Veteran is competent to report that he had decreased hearing acuity and ringing or buzzing at discharge and in the years following service, he is not competent to assert that he had a hearing loss disability or that he met the criteria for hearing loss per VA standards at any time during service or following his discharge from service. It is sensorineural hearing loss (as an organic disease of the nervous system), not a subjective complaint of a decrease in hearing acuity, that is considered a chronic condition pursuant to 38 C.F.R. § 3.309(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). In this case, a bilateral hearing loss disability was not shown to have been manifested during service, but the Veteran has reported a continuous symptom of bilateral hearing loss since service. However, his subjective symptom of decreased hearing acuity does not equate to actual hearing loss. Medical testing and expertise are needed to determine whether actual hearing loss exists. There is no indication that the Veteran has specialized training sufficient to diagnose hearing loss or determine its etiology. See Jandreau, 492 F.3d at 1376-77. In this regard, the presence of a hearing loss disability and the etiology of such is a matter not capable of lay observation and requires medical expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn, 12 Vet. App. at 301. In this case, hearing loss disability was not noted in service and his assertion of hearing loss beginning in service likewise does not establish the presence of a hearing loss disability during that time. Rather, the first evidence of hearing loss disability is in 2018, 42 years after discharge from service. Thus, while the Veteran may state that he suffered from hearing loss during and since service, the Board finds the in-service and post-service audiograms to be more probative as to the actual presence of hearing loss. As the Veteran was not shown to have a hearing loss disability manifested during service or following service until 2018, service connection based on continuity is not warranted. Moreover, the opinion of the VA examiner that the Veteran’s current hearing loss disability did not arise in service and is not otherwise related to service is significantly more probative than the Veteran’s assertion that the condition began in service or is related to noise exposure during service. There is no probative medical opinion linking the current hearing loss disability to service, and the Veteran, as a lay person, is not competent to opine that his subjective symptom of decreased hearing acuity during and following service constitute actual hearing loss under VA regulations. In sum, the preponderance of the competent and probative evidence is against a finding that the Veteran’s bilateral hearing loss arose in service or for decades thereafter, or that it is otherwise related to service. The Board finds that another VA examination is not warranted since the Veteran has not provided probative evidence linking the current bilateral hearing loss to service. See 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). David Gratz Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.