Citation Nr: 20049987 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 15-08 088 DATE: July 28, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that bilateral hearing loss began during active service or manifested within a year of discharge, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1961 to January 1965. This matter comes before the Board of Veterans Appeals (Board) from an August 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Board remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development in January 2019. In addition to the issue addressed herein, the Board also remanded the issue of service connection for tinnitus. During the pendency of the appeal, in a June 2020 rating decision, the AOJ granted service connection for tinnitus. As this represents a full grant of the benefit and the Veteran has not disagreed with the disability rating or effective date, this issue is no longer before the Board. As to the claim for service connection for hearing loss, this case returns to the Board for final review and disposition. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he developed bilateral hearing loss as the result of his military service. 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). Certain chronic diseases, including hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and evidence shows that in-service noise exposure occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral hearing loss began during service, within a year of service discharge, or is otherwise related to an in-service injury, event, or disease. Medical treatment records show the Veteran was not diagnosed with hearing loss until February 2014, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of difficulty hearing intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of bilateral hearing loss. The issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Also, the Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing any hearing loss at his separation exam in 1965. The Board recognizes the Veteran’s noise exposure during his military service. Thus, the remaining question in this case is whether the Veteran’s current bilateral hearing loss is related to his military service. In the January 2019 remand, the Board found that a February 2014 private opinion and an August 2014 VA opinion were inadequate and remanded the case for a new opinion. In November 2019, a VA examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not related to an in-service noise exposure. The rationale was the Veteran’s separation examination was within normal limits for high frequencies where hearing loss from noise exposure would be expected, and borderline normal in the lower frequencies, which was objective evidence of no permanent auditory damage from conceded noise exposure. The examiner also stated that the Veteran had post service noise exposure that may have contributed to hearing loss today. While recognizing noise exposure and the relationship of noise, auditory damage, and hearing loss, the examiner noted that auditory damage and hearing loss were not conceded based on noise alone. There must be a nexus auditory damage to relate current hearing loss to miliary and not another etiology. The VA examiner’s opinion is probative, because it considered the Veteran’s contentions, 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). The Veteran believes his hearing loss is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives probative weight to the November 2019 VA examiner’s opinion. (Continued on the next page)   The Board concludes that the weight of competent and credible evidence is against the Veteran’s bilateral hearing loss being related to his service. Thus, the Board finds that entitlement to service connection for bilateral hearing loss is not warranted. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Owaiian Jones, Law Clerk 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.