Citation Nr: 21000027 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-09 835 DATE: January 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran has not been diagnosed with left ear hearing loss for VA purposes. 2. The Veteran’s right ear hearing loss first manifested many years after his separation from service and is not related to his service or any incident therein, including noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1986 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ); a transcript is of record. The Board notes that the VLJ who conducted the hearing is no longer employed by the Board. In April 2020, the Veteran was notified of this information and afforded the opportunity for another hearing, pursuant to 38 C.F.R. § 20.707 (noting that a VLJ who conducts a hearing on appeal must participate in any decision made on that appeal). The Veteran did not respond. As such, there is no outstanding hearing request and the Board will consider this claim based on the evidence of record. The Board remanded this claim in June 2016 and May 2020 to the agency of original jurisdiction (AOJ) for a VA examination opinion. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998).   Entitlement to service connection for bilateral hearing loss. The Veteran asserts that his bilateral hearing loss is related to his active military service. Upon review of all evidence of record, the Board finds that the Veteran’s service connection claim must be denied. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, to include high frequency sensorineural hearing loss an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may 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 affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels 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 using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Notably however, “section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.” Hensley v. Brown, 5 Vet. App. 155, 159 (1993). “When audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Id. at 160. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, a current diagnosis of right ear hearing loss is of record. In this regard, the Veteran was afforded a VA audiological examination in July 2020. The examiner documented Maryland CNC speech discrimination scores of 98 percent in right ear and 100 percent in left ear. The following pure tone thresholds, in decibels, were documented: Hertz 500 1000 2000 3000 4000 Right ear 25 30 15 30 30 Left ear 20 20 20 35 35 On examination, the Veteran was shown to have a right ear hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Board notes that while the examiner diagnosed the Veteran with bilateral sensorineural hearing loss, the objective findings for speech discrimination and the auditory thresholds of the left ear do not meet the impaired hearing criteria for VA disability purposes. See 38 C.F.R. § 3.385. A VA hearing loss diagnosis is based on documented pure tone thresholds in the frequency range of 500-4000 Hz. Id. The examiner’s diagnosis was based on documented pure tone thresholds in the frequency range of 6000 Hz and higher. Thus, the Board finds that the present disability element for service connection for right, but not left, ear hearing loss has been established. As noted, a current disability of hearing loss in the left ear as recognized by VA regulations is not present. The Board also notes that although a left ear infection was noted in January 1993, the service treatment records (STRs) and post service examination reports show normal audiological findings of the left ear. See January 1985 Entrance Examination Report, August 1993 Separation Examination Report, and December 2011 and July 2020 VA examination reports. Accordingly, in the absence of a current left ear disability, the Board finds that service connection cannot be established. 38 C.F.R. § 3.385; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board will now turn to whether service connection can be established for hearing loss of the right ear. As noted, right hearing loss as recognized by VA regulation is present. Also, the Board finds that in-service incurrence element has been satisfied. The Veteran’s DD Form 214 shows his military occupational specialty (MOS) as a motor transport operator. Additionally, in January 2012, the Board granted the Veteran’s claim for entitlement to service connection for tinnitus resulting from in-service noise exposure, including noise from explosions, diesel engines, and weapons fire. VA has conceded exposure to hazardous military noise during service. As the in-service incurrence element has been met, the Board will focus its analysis on whether the Veteran’s right ear hearing loss is related to service. As to the nexus element, the Veteran’s STRs include a January 1985 audiometric testing at service entrance with recorded data as follows: Hertz 500 1000 2000 3000 4000 Right ear 15 00 00 05 10 As illustrated above, the Veteran’s in-service audiological evaluation showed normal hearing. In addition, while the January 1985 Report of Medical History notes that the Veteran admitted to having ear trouble, he explained that he had an ear infection in 1979. The Veteran’s STRs also show that he was treated for cerumen in his right ear in April 1990. However, at separation examination conducted in July 1993, the following pure tone thresholds, in decibels, were documented: Hertz 500 1000 2000 3000 4000 Right ear 15 00 05 05 15 The Veteran’s STRs show no complaints, treatment, or diagnosis related to hearing loss. A review of other evidence of record also does not substantiate the Veteran’s right ear hearing loss claim. Significantly, the Veteran initially underwent a VA examination in December 2011. The recorded pure tone thresholds and Maryland CNC speech discrimination scores were within normal limits. The Veteran was not found to have hearing loss in either ear. The examiner noted that his hearing levels were normal for each ear at the time of enlistment and separation. The examiner opined that the Veteran’s claimed hearing loss was less likely than not caused by or a result of an event in military service. The examiner explained that damage to hearing occurs at the time of noise exposure. As such, a normal audiogram post-noise exposure verifies that the Veteran’s hearing had recovered without a permanent loss. The Veteran underwent another VA examination in July 2020. The examiner opined that it is less likely than not that the Veteran’s hearing loss was caused by or is a result of an in-service event, or noise exposure. The examiner’s rationale was based on the fact that the Veteran’s hearing was normal at the time of enlistment, at discharge and in follow-up audiograms many years later. The examiner also noted that the current science indicates that a delayed noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The Board accords great probative weight to the December 2011 and July 2020 VA opinions. The examiners have the necessary expertise as Audiologists, the opinions are based on an accurate medical history and the examiners provided an explanation that contains a clear conclusion and supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, a review of the Veteran’s post-service treatment records shows that the Veteran “feels” that his hearing has worsen and that decreased hearing has been noted. See e.g. September 2017 VA treatment record and April 2016 VA treatment record. Nonetheless, there is no competent, credible and probative evidence linking the Veteran’s right ear hearing loss to his military service. Accordingly, the Board finds that the record does not substantiate the claim that the Veteran’s current right ear hearing loss is related to any in-service noise exposure. The Board also acknowledges the Veteran’s testimony that he has trouble with communicating and his hearing loss has increased in severity. See March 2014 Board hearing transcript. However, while the Veteran is competent to report hearing difficulties, he is not competent to diagnose hearing loss, or to provide a nexus opinion in this case. Such an opinion requires specialized knowledge of audiograms and an ability to interpret all pertinent responses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  As noted, the Board finds the December 2011 and July 2020 VA opinions more probative to address the Veteran’s claim. The Board has considered whether service connection is warranted on a presumptive basis for chronic diseases. 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015) (sensorineural hearing loss is considered a chronic disease for the purposes of § 3.309(a)). However, the evidence does not show that the Veteran’s right ear hearing loss manifested to a degree of 10 percent or more within a year of separation from service; therefore, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board also considered whether service connection is warranted based on a continuity of symptomatology framework. 38 C.F.R. § 3.303(b). To the extent the Veteran asserts that his hearing issues have been ongoing since the military, he is competent to relate experiencing a decrease in hearing acuity during service because it is a readily observable symptom. However, the Board finds that the evidence contemporaneous to his service is more reliable in regard to the state of his health. Specifically, the Veteran’s discharge examination noted that his hearing was normal after a clinical evaluation. This contemporaneous evidence as to his then-existing physical condition (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Moreover, the competent and probative VA opinions outweigh any lay assertion that the current right ear hearing loss is related to military noise exposure. Thus, the continuity of symptomatology framework is not sufficient to grant this claim. Accordingly, service connection is not warranted for hearing loss of the left ear, as there is no current disability for VA purposes, or hearing loss of the right ear, as there is no nexus to service. In reaching the conclusion that service connection for bilateral hearing loss is not warranted, the Board remains sympathetic to the Veteran and grateful for his military service, and regrets that a more favorable outcome could not be reached. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Gilbert, supra.   The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.