Citation Nr: 20049992 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 15-36 462 DATE: July 28, 2020 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1966 to June 1968, including service in the Republic of Vietnam. Service Connection—Bilateral Hearing Loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 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 (1993). The Veteran’s service separation form shows that he served as a field artillery man. Thus, in-service noise exposure may be conceded. However, his service treatment records do not show any complaints, findings or diagnoses of hearing loss in either ear. The February 1966 entrance examination revealed puretone thresholds, in decibels, of 0, 0, 0, NA and 0 in the right ear and 0, 0, 0, NA and 25 in the left ear at 500, 1000, 2000, 3000 and 4000 Hertz. The May 1968 separation examination revealed puretone thresholds of 0, 5, 10, NA and 15 in the right ear and 5, 5, 10, NA and 15 in the left ear. Thus, while the Veteran may have had decreased hearing acuity in the left ear at 4000 Hz at the time of entrance into service, there are no complaints, findings or diagnoses of hearing loss in either ear during service, including at separation. At a November 2013 VA examination, the Veteran denied recreational and civilian noise exposure. The examiner opined that the Veteran’s bilateral hearing loss was not caused by, or a result of, in-service noise exposure. The examiner acknowledged the Veteran’s in-service exposure to small arms fire, artillery and explosions. The examiner also noted that the service entrance and separation examinations showed hearing within normal limits bilaterally. The examiner stated that there was no significant threshold shift in either ear during service. The examiner concluded that the Veteran’s bilateral hearing loss is not due to military noise exposure. However, as the VA examiner’s opinion was not supported by sufficient rationale, the Board requested another examination and opinion. At a May 2019 VA examination, the Veteran reported that his hearing loss began during active service. He reported military noise exposure to artillery, small arms fire, explosions and grenades without hearing protection. He denied post-service occupational noise exposure but reported occasional recreational noise exposure to firearms while hunting with hearing protection. The examiner opined that the Veteran’s bilateral hearing loss was not caused by, or a result of, in-service noise exposure. The examiner stated that there is no significant threshold shift from entrance to separation in either ear, which is objective evidence of no permanent auditory damage on active duty from conceded noise exposure. The examiner noted that there is no report of complaint or treatment for hearing decrease in the service treatment records or at separation. The examiner stated that, although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. The examiner noted that there must be a nexus of auditory damage to relate current hearing loss to military noise exposure and not another etiology. The examiner concluded that the evidence is against a nexus in this case and that, therefore, the Veteran’s hearing loss is not related to military noise exposure. Given the above, a VA examiner opined that the Veteran’s bilateral hearing loss disability was not related to in-service noise exposure. It is the only competent medical opinion of record and, unfortunately, it is against the Veteran’s claim. The first objective evidence of hearing loss disability is in a November 2012 VA medical record which shows the Veteran’s request for an audiology consultation as he has had increasing difficulty with hearing over the past year. A December 2012 hearing test shows hearing loss disability bilaterally. He then filed his claim for service connection for bilateral hearing loss in January 2013. The above is dated over 40 years after his discharge from active service. While not dispositive, the passage of so many years between discharge from active service and objective documentation of a disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In any event, the Board finds that the Veteran’s bilateral hearing loss disability did not have its onset within one year of his active service. The Board notes that a lay person is competent to give evidence about observable symptoms such as decreased hearing acuity. Layno v. Brown, 6 Vet. App. 465 (1994). In addition, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that the Veteran claims to have experienced continuous hearing loss since active service, he is not found to be credible. He did not complain of hearing problems at his service discharge examination, and audiometric testing at that time showed normal hearing bilaterally. There is also no medical evidence of hearing loss until over 40 years after his discharge from active service. Lastly, if he had experienced hearing problems since active service, it would be reasonable to expect that he would have filed a disability claim much sooner than in January 2013. Thus, the Board finds that any statements alleging or implying a continuity of bilateral hearing loss symptoms are not credible in this case. Continuity of symptomatology is not established by the competent evidence or the Veteran’s own statements. Moreover, the probative medical evidence of record does not relate the Veteran’s current bilateral hearing loss to active service. While the Veteran asserts that he had in-service noise exposure and has submitted documentation that his unit was in combat situations in support of that assertion, such exposure already has been conceded. The question in this case is whether such exposure caused his current hearing loss, which a VA examiner has answered in the negative, noting that the in-service noise exposure did not result in auditory damage. Given the above, the Board finds that the Veteran’s bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.