Citation Nr: 21002792 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 15-38 894A DATE: January 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current bilateral hearing loss disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from September 1970 to September 1974. This appeal stems from a March 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2019, the Veteran testified before the undersigned at a Board of Veterans’ Appeals (Board) hearing. This appeal was previously before the Board and was remanded in May 2019 for further development. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). With regard to the presence of a current disability, VA will consider impaired hearing to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Certain chronic diseases, to include hearing loss as an organic disease of the nervous system pursuant to 38 C.F.R. § 3.309(a), will be service connected on a presumptive basis if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Further, if a chronic disease is noted during service or during the one-year presumptive period after separation from service, a continuity of symptomatology can show chronicity and a subsequent manifestation of the same disease is presumed to be service connected. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). A Veteran is competent to report symptoms that he or she experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Board finds that service connection for bilateral hearing loss is not warranted. While exposure to hazardous noise in-service has been conceded and a VA examination in August 2020 confirmed that the Veteran does in fact currently experience bilateral sensorineural hearing loss, the preponderance of the evidence goes against a finding of nexus between the Veteran’s military service and his current hearing loss disability. As a preliminary matter, the Board finds the presumptive provisions regarding chronic diseases are not for application in this case because there is no evidence that indicates the Veteran’s current bilateral hearing loss disability was noted in service or manifested to a compensable degree or was otherwise noted within one year of his separation from service. Although the Veteran testified during his January 2019 hearing that he experienced total hearing loss for a two-week period during service, the Veteran’s service treatment records do not indicate any objective nor subjective manifestations of hearing loss, and the Veteran himself did not testify that this instance of temporary loss was the initial point of continuous hearing regression, or the start of a pattern of intermittent hearing loss. The Board acknowledges that a finding that service connection is not warranted on a presumptive basis does not foreclose the possibility of establishing service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). However, assessment of the all the evidence of record does not support the finding of nexus necessary to award service connection. The Veteran contends that his hearing loss began while in service, citing proximity to radar jets, diesel fuel generators, and artillery fire, as various sources of damage to his hearing. Although the Veteran is competent to testify as to his subjective experience of the symptoms hearing loss, the Veteran is not competent to state the origin of the hearing loss that he experienced as this is a medically complex matter. Therefore, while the Board acknowledges and accepts the Veteran’s lay statements that he perceived a decline in his hearing in the 1970s, these statements alone are insufficient to support a finding of nexus in light of the rest of the evidence of record, which discourages such a finding. The Veteran’s claim for hearing loss was remanded in May 2019 after the Veteran testified during his January 2019 hearing that his hearing had worsened since his last VA examination in May 2011, where the examiner found that that Veteran’s audiometric measurements did not meet the criteria for a grant of service connection for hearing loss. Therefore, the Board directed that the Veteran receive a new examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The August 2020 VA examiner noted that although the Veteran’s hearing measurements do now meet the minimum criteria for hearing loss for VA purposes, his current disability is less likely than not due to service because a nexus between his current disability and his service is still absent. After a thorough review of the Veteran’s record, the examiner remarked that there were no significant threshold shifts between his September 1970 enlistment and August 1974 separation audiograms. The examiner further noted that between his September 1970 enlistment examination and a later May 1990 audiological examination, there was still no evidence of significant threshold shifts. The examiner provided a thorough explanation of the current literature on hearing loss to explain how exposure to hazardous noise during service does not necessarily cause the noise damage that manifests as hearing loss. The incurrence of noise injury and the likelihood of delayed onset hearing loss are typically reflected by significant threshold shifts and in the absence of this objective audiometric evidence, “an affirmative opinion that the Veteran suffered some latent undiagnosed noise injury is utter speculation and directly contradicts the objective evidence of record.” Additionally, the examiner discussed the possible impact of the Veteran’s recreational exposure to hazardous noise outside of service. The Veteran testified that he engaged in hunting, target shooting, power tool use, car racing, and motorcycle riding – all exposures to loud recreational equipment. Although the Veteran testified to using protective hearing in some instances, such as during shooting and hunting, he admitted to not using them in others, such as during power tool use, racing, and motorcycling. The examiner emphasized that “the degree of any noise-induced hearing loss is highly correlated with the intensity of the noise and the length of exposure time,” and suggested that these recurrent post-service exposures were more likely the cause of the Veteran’s current hearing loss disability than service given the much longer period of post-service noise exposure versus the shorter period of in-service exposure. The August 2020 VA examination report provided a well-reasoned and extensive rationale as to why the etiology of the Veteran’s hearing loss is less likely than not attributable to service. There are no competent medical opinions of record that contradict the August 2020 negative opinion. Therefore, the preponderance of the evidence is against a finding of nexus to service, the benefit-of-the-doubt doctrine does not apply, and the Veteran’s service connection claim for bilateral hearing loss must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.