Citation Nr: 21000681 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-34 733 DATE: January 5, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT A hearing loss disability was not manifest in service or within one year of separation from service and was not otherwise caused by the Veteran’s active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to August 1974 as a U.S. Army clerk typist. In November 2018, the Board remanded this issue to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). 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 a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. In addition to the above-noted legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. Entitlement to service connection for a bilateral hearing loss disability The Veteran filed a claim for entitlement to service connection for a bilateral hearing loss disability in July 2017. The Veteran contends that his hearing loss is related to service. The Veteran’s DD 214 notes his military occupational specialty (MOS) was as a clerk typist. The Veteran’s service treatment records (STRs) are associated with the claims file. An audiogram at his entrance examination in September 1973 revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 - 5 LEFT 5 5 5 - 5 At separation on the audiological evaluation in September 1974 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 0 -5 - 10 LEFT -15 -5 -5 - 5 The September 1974 audiological test specifically stated that thresholds were recorded using International Standards Organization-American National Standards Institute (ISO-ANSI) units. VA treatment records reflect that the Veteran first reports hearing loss in January 2005. A February 2005 audiogram showed a hearing loss disability for VA purposes in both ears. The Veteran periodically sought treatment for hearing loss from that point forward, and May 2007 and April 2011 VA audiograms show a hearing loss disability for VA purposes bilaterally. The Veteran was afforded a VA audiological examination in October 2017. The examiner noted bilateral sensorineural hearing loss. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 35 50 LEFT 20 20 20 25 30 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. The Veteran reported fluctuating hearing loss for many years, and a history of ear infections since childhood. The examiner determined that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz and it was less likely than not that any current hearing loss disability was caused by or the result of the Veteran’s service. She explained that while it was well known that prolonged exposure to noise of high intensity and short duration could cause permanent damage in the structures of the inner ear, “no retroactive effect is expected to be seen as hearing loss with onset so many years after being exposed to military noise.” She went on to state that “hearing loss might also be associated with the combined effect of post-service occupational and or recreational noise exposure, recurrent middle ear pathology, and the normal aging process due to progressive inner ear dysfunction.” There is no other evidence of record regarding the etiology of the Veteran’s hearing loss. As an initial matter, the Board notes that the Veteran’s October 2017 VA examination did not reveal hearing loss for VA purposes in the left ear. However, March 2020 VA treatment records do reflect bilateral sensorineural hearing loss, and VA audiograms in February 2005, May 2007, and April 2011 reveal left ear hearing loss for VA purposes. After consideration of all the evidence of record, the Board finds that the weight of competent and credible evidence is against finding that service connection for bilateral hearing loss is warranted. The Board concludes that service connection is not warranted as the Veteran’s hearing loss did not begin during service and is not attributable to service. The Board has considered the Veteran’s contentions regarding the etiology of his hearing loss; however, the record does not reflect that he had the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinion of record. The Board gives more probative weight to the competent medical evidence, specifically the October 2017 VA opinion, which found that the Veteran’s current right and left hearing loss was less likely than not incurred in or caused by a claimed in-service injury, event or illness and provided a thorough analysis and rationale for the opinion. The examiner noted that the Veteran had normal hearing with no significant threshold shifts at the time of separation. The Board finds the October 2017 VA opinion is entitled to significant probative weight, as this opinion is based on a thorough medical examination, review of the entirety of the record, and the medical literature, and is more probative and credible than the lay opinion of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, the Board concludes that, while the Veteran has hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3)/38 C.F.R. § § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. A bilateral hearing loss disability was not “noted” during service or within one year of separation. See Walker, 708 F.3d 1331. Based on the probative evidence of record the Board finds that the Veteran’s hearing loss did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. The Veteran’s audiogram at separation does not indicate that a hearing loss disability was present in service. Furthermore, the Veteran has not introduced any evidence suggesting hearing loss prior to 2005 or alleged any in-service symptomology. VA treatment records note the Veteran was not diagnosed with hearing loss until 2005 and hearing aids were not issued until 2011. This was decades after his separation from service and decades outside of the applicable presumptive period. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. As such, the Board finds that service connection for a hearing loss disability is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.