Citation Nr: 20046433 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 14-38 898A DATE: July 10, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. It has been conceded that the Veteran was exposed to military acoustic trauma based on his military occupational specialty of aviation electrician and plane captain. 2. The Veteran’s treatment records reflect that the Veteran was diagnosed with bilateral hearing loss in approximately 2003. 3. Hearing loss was not shown in-service or for many years thereafter; and, the preponderance of the evidence fails to establish that the Veteran’s bilateral hearing loss is etiologically related to his active service, to include in-service noise exposure. Sensorineural hearing loss was not shown within 1 year following separation from service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service, and sensorineural hearing loss may not be presumed to have been incurred in-service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from March 1967 to December 1970. In March 2018, the Veteran appeared at a hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2018, the Board granted entitlement to service connection for tinnitus and remanded the issue of entitlement to service connection for bilateral hearing loss for evidentiary development. It has since been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including sensorineural hearing loss, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. 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, as distinguished from merely isolated findings or diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the “chronic” diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for bilateral hearing loss The Veteran seeks entitlement to service connection for bilateral hearing loss. Essentially, he contends that his bilateral hearing loss is due to acoustic trauma experienced in-service. For the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz (Hz) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores utilizing the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s service treatment records are negative for any complaints of hearing loss. These records show that he was an aviation electrician in the U.S. Navy and also served as a plane captain from August 1968 to February 1969, where he spent time on the flight deck of the USS Hancock. Acoustic trauma has since been conceded. The Board notes that the Veteran claims that he first sought VA treatment for hearing problems around 1972. However, there are no treatment records from that time contained in his electronic claims file and additional attempts to locate these records have proven futile. The first documented treatment for hearing problems is in approximately 2003. The Veteran received a VA examination in June 2012. Audiometric testing revealed sensorineural hearing loss for VA purposes, bilaterally. See 38 C.F.R. § 3.385 (2019). The VA examiner determined that the Veteran’s bilateral hearing loss is less likely as not caused by or a result of an event in active service. The VA examiner explained that a review of his entrance audiogram and his separation examination revealed essentially normal hearing. There was some shift in frequencies between entrance and separation examinations. It was not discussed whether this might indicate the early onset of hearing loss even though essentially normal hearing was shown at separation. The Board observes a January 2013 report from his private audiologist. The audiologist diagnosed him with bilateral hearing loss and tinnitus and noted the Veteran’s extensive history of noise exposure while in the military. The audiologist opined that the Veteran’s “hearing loss is more likely than not caused by exposure to acoustic trauma consistent with long term exposure to jet/aircraft engines.” The audiologist also recommended that the Veteran be fitted for hearing aids. An addendum opinion was obtained in June 2014. The examiner determined that the Veteran’s hearing loss is less likely than not attributable to service, but no rationale was provided. Pursuant to the Board’s August 2018 remand, the Veteran received another VA audiological examination in November 2019, wherein his diagnosis of bilateral hearing loss was confirmed. After a review of the electronic claims file, the examiner determined that the Veteran’s bilateral hearing loss is less likely than not attributable to service. The examiner provided the following remarks: The veteran’s separation audio exam dated Dec 2, 1970 shows normal hearing thresholds at all frequencies tested with no significant threshold shifts in the higher frequencies. There is no evidence of hearing loss in the veteran’s service treatment records or documented hearing loss within a short time frame after discharge. The first documented hearing loss is in January 2013, which was more than 40 years after separation from the service. The configuration of veteran’s hearing loss is consistent with presbycusis (age related hearing loss), therefore it is less likely than not that claimant’s hearing loss is a result of military noise exposure. Here, the Board acknowledges that the Veteran currently has bilateral hearing loss, as defined by 38 C.F.R. § 3.385. As discussed above, the Board has also conceded in-service noise exposure. When evaluating medical opinions, it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations, and there must be plausible reasons for favoring one opinion over another. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran’s claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusions reached. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). A preponderance of the evidence shows that the Veteran’s bilateral hearing loss is not related to service. The Board finds the November 2019 VA examiner’s reasoning highly probative she indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran’s claims regarding in-service noise exposure. Particularly, the examiner stated that the Veteran’s service records showed no significant threshold shifts and attributed the hearing loss to the normal aging process. Meanwhile, the August 2013 private audiologist did not provide a thorough rationale and there is no indication she had reviewed the entirety of the Veteran’s electronic claims file. Although the Veteran asserts that his hearing loss was caused by service, diagnosing the etiology of a complex disorder such as sensorineural hearing loss is outside the scope of a lay person’s competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran is competent to report symptoms such as difficulty hearing, his lay assertions offer little support for the claim. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran was discharged from service in December 1970 and his hearing thresholds were essentially normal at that time. Importantly, there are no medical records indicating any hearing problems until approximately 2003. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that the lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the fact that the Veteran did not submit a claim for service connection for hearing loss until 2010, almost 40 years after separation from service, may be considered as a factor in resolving the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999). There is otherwise no evidence indicating compensable hearing loss within one year of separation from service, nor is there evidence, aside from the Veteran’s assertions and the fact that there are no medical records documenting complaints of hearing problems until 2003, of a continuity of symptomatology since service. 38 C.F.R. §§ 3.307, 3.309. Therefore, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.