Citation Nr: 21000747 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-06 201 DATE: January 6, 2021 ORDER Service connection for right ear hearing loss, to include as secondary to service-connected left ear hearing loss, is denied. REFERRED In its December 2018 decision and remand and its March 2020 remand, the Board referred the issue of entitlement to service connection for left knee disability for adjudication by the Agency of Original Jurisdiction (AOJ). As no action has been taken, the Board refers the issue again for appropriate action. 38 C.F.R. § 20.904(b). FINDING OF FACT The Veteran’s right ear hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service injury, event, or disease; and it is not secondary to service-connected left ear hearing loss. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss, to include as secondary to service-connected left ear hearing loss, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.307, 3.309(a), 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to May 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision. In April 2017, the Veteran testified at a videoconference Board hearing before the undersigned, and a transcript is of record. In December 2017 and March 2020, the Board remanded this issue as well as others for further development, and the case has been returned for appellate consideration. In a September 2020 rating decision, service connection was granted effective August 31, 2011, for: left hand strain, index and long fingers (claimed as knuckles pain in joints), evaluated as 10 percent disabling; lumbar sprain (claimed as back muscle pain), evaluated as 10 percent disabling; and tinea corporis (claimed as skin rash), evaluated as noncompensable. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). As to the evaluation assigned for tinea corporis, the Veteran filed a Supplemental Claim, and in a January 2021 rating decision, an evaluation of 10 percent disabling was assigned effective August 31, 2011. Otherwise, the Veteran has not expressed disagreement with either the disability evaluations or effective dates assigned. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 19.52 (formerly 20.302), 20.1103. Therefore, these issues have been granted in full and are no longer before the Board. In a September 2020 supplemental statement of the case, service connection was denied for right ear hearing loss, to include as secondary to service-connected left ear hearing loss, so that issue remains on appeal. Service Connection 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). For certain enumerated chronic diseases, such as other organic diseases of the nervous system, which include sensorineural hearing loss, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)); Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an organic disease of the nervous system under 38 C.F.R. § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is 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.” 38 C.F.R. § 3.303(b); see 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b). For VA purposes, there are three ways in which an audiological examination can show that hearing loss is disabling: 1) “when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater”; or 2) “when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater”; or 3) “when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. “Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 158–60 (1993) (setting out the requirements for establishing service connection for hearing loss). Alternatively, a disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progression by a service-connected disease or injury. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.310(a), (b). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. Entitlement to service connection for right ear hearing loss, to include as secondary to service-connected left ear hearing loss. The Veteran essentially contends that his right ear hearing loss is the result of in-service exposure to hazardous noise or, alternatively, is secondary to his service-connected left ear hearing loss. During his April 2017 hearing, the Veteran stated that he was responsible for taking care of aircraft weapon systems, guns, and munitions such that he was always around running aircraft. He stated that he always wore hearing protection, but he believed he had failed hearing examinations in-service because he would be pulled from the flight line. He stated that after being pulled from the flight line for three, five, or 10 days he would be issued a new type of hearing protection. He stated that, while on active duty, he noticed his hearing decreasing. The question for the Board, therefore, is whether the Veteran’s right ear hearing loss is related to active duty service or is secondary to his service-connected left ear hearing loss. The Board concludes that, while the Veteran has right ear hearing loss, which is a chronic disease (organic diseases of the nervous system) under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1110, 1101(3), 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Furthermore, his right ear hearing loss is not directly related to service or as secondary to his service-connected left ear hearing loss. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. VA medical records show that in November 2014 the Veteran was advised that he needed to be enrolled in primary care before he could be seen by audiology. The Veteran presented reports of private audiology examinations conducted in August 2015 and March 2016. In June 2018, the Veteran was afforded a VA examination for hearing loss and tinnitus, during which pure tone thresholds for the right ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 40 45 30 Speech audiometry revealed speech recognition ability in the right ear of 96 percent. The Board finds that the Veteran has right ear hearing loss for VA purposes. See 38 C.F.R. § 3.385. Accordingly, the first Shedden and Wallin elements are met. In a July 2019 rating decision, service connection was granted for hearing loss, left ear, and therefore, the second Wallin element is met. The Veteran’s DD Form 214 shows that for 24 years his military occupational specialty (MOS) was aircraft armament systems superintendent. The Veteran testified that his MOS involved working on the flight line such that he worked around the jets while engines were running. The Veteran’s service treatment records show that he was in a hearing conservation program with annual hearing examinations. An October 1992 audiometric case history shows that the Veteran was being examined within 15 hours of loud noise exposure. He indicated that he had difficulty hearing warning bells or siren, over the phone, in noisy rooms, and normal speech. He indicated “no” as to whether his hearing frequently changed and whether he had hearing loss of any kind. The examiner recorded that his hearing examination was normal. An October 1993 audiometric case history shows that the Veteran was not being examined within 15 hours of loud noise exposure. He indicated that he did not have difficulty hearing warning bells or siren, over the phone, in noisy rooms, and normal speech. He indicated that his hearing did frequently change. He indicated that he did not have hearing loss of any kind. The examiner recorded that he passed the examination. An accompanying Chronological Record of Medical Care shows that occupational related injury/illness was noted. It was recorded: “Frequently changing hearing is related to noise exposure.” It was recorded that he passed the hearing examination and a hearing loss code of H-1 was assigned. A February 1995 audiometric case history shows that the Veteran was not being examined within 15 hours of loud noise exposure. He indicated that he did not have any difficulty hearing, that his hearing did not frequently change, and that he did not have hearing loss of any kind. The Veteran’s March 1996 report of medical examination for retirement shows that pure tone thresholds for the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 10 The Board finds that the Veteran’s MOS was consistent with in-service exposure to hazardous noise, and there is evidence that he reported reduced hearing acuity during service. Accordingly, the second Shedden element is met. The Board notes that the Veteran, while entirely competent to report reduced hearing acuity, is not competent to proffer an opinion as to diagnosis or etiology. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Such opinions require specialized medical education and training on the pathologies of the hearing apparatus and the ability to interpret complicated diagnostic medical testing, and accordingly, the Board finds the medical findings more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Prejean v. West, 13 Vet. App. 444, 448–9 (2000). Furthermore, the Board finds the Veteran’s recent reports of continuity of symptomatology since service are not credible as they are inconsistent with his reports in contemporaneous service treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Harvey v. Brown, 6 Vet. App. 390, 393–94 (1994) (drawing a credibility distinction between statements made for receiving treatment and those made for seeking compensation). In October 1992, he reported difficulty hearing in certain circumstances but otherwise denied hearing loss; this was within 15 hours of loud noise exposure. In October 1993, he denied having difficulty hearing but indicated that his hearing frequently changed; this was recorded as being related to noise exposure. In February 1995, the Veteran denied all hearing-related issues. Throughout service, the Veteran’s hearing was found to be normal when tested more than 15 hours after loud noise exposure. The earliest medical evidence of record showing right ear hearing loss is the report of the August 2015 private audiology examination. Although the evidence shows that the Veteran reported reduced hearing acuity in 1992 and 1993, the preponderance of the evidence is against finding that the symptomatology persisted continuously thereafter as to his right ear. Consequently, the third Shedden element is not met on a presumptive basis, and the claim fails. After fully reviewing the claims file, the June 2018 VA examiner indicated that, as to the right ear, there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz. The examiner opined that it was less likely than not that the Veteran’s right ear hearing loss was caused by or the result of an event in service. The examiner noted that from March 1972 to October 1993, audiometry testing revealed normal hearing in the right ear with no significant threshold shifts. It was noted that, likewise, audiometry testing in February 1995 and at separation revealed normal hearing in the right ear. It was stated that there were no significant threshold shifts “or hearing loss present in the right ear after 24 years in service, so there is no evidence of acoustic trauma.” It was opined that the Veteran’s right ear hearing was “more than likely impacted by civilian noise exposure, presbycusis, and/or some other etiology.” As there is not a medical basis to support a nexus between service and the Veteran’s right ear hearing loss, the third Shedden element is not met on a direct basis, and the claim fails. In August 2020, the Veteran was afforded another VA examination for hearing loss and tinnitus, during which hearing loss for VA purposes in the right ear was again demonstrated. This examiner opined also that it was less likely than not that the Veteran’s right ear hearing loss was directly related to in-service noise exposure. The examiner opined that the right ear hearing loss was unrelated to the Veteran’s left ear hearing loss as the left ear hearing loss occurred during service and there was no indication of right ear hearing loss during service. It was opined, likewise, that because the left ear hearing loss manifested during service while the right ear hearing remained normal, the left ear hearing loss did not aggravate the right ear hearing beyond its natural progression. As there is not a medical basis to support a nexus between the Veteran’s right ear hearing loss and his service-connected left ear hearing loss, the third Wallin element is not met, and the claim fails on a secondary basis. To reiterate, while the Veteran believes his right ear hearing loss is related to in-service exposure to hazardous noise or, alternatively, to his service-connected left ear hearing loss, he is not competent to provide a nexus opinion in this case. This issue is medically complex, and consequently, the Board gives more probative weight to the competent medical evidence. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.