Citation Nr: 21003781 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-23 609 DATE: January 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for vertigo is remanded. FINDING OF FACT Hearing loss was not demonstrated in service, a sensorineural hearing loss was not compensably disabling within one year of the Veteran’s separation from active duty, and the preponderance of the evidence is against finding that a current hearing loss disability is related to the Veteran’s service.   CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1956 to September 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Albuquerque, New Mexico. This matter was previously before the Board and remanded for additional development in November 2019. In September 2019, the Veteran testified during a video conference hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. In December 2020, the Veteran was informed that the Veterans Law Judge who held the hearing was no longer employed at the Board. The Veteran did not request a new hearing, and the Board will proceed with adjudication. Entitlement to service connection for bilateral hearing loss The Veteran claims entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Here, the Veteran claims that he is entitled to service connection for bilateral hearing loss because, according to him, he incurred the condition during his active military service and as a result of his in-service noise exposure. See, e.g., Transcript of Hearing Before Board dated September 13, 2019. The Veteran contends that he was exposed to excessive noise from jet engines and suffered acoustic trauma as a result of his duties during active service as an aviation storekeeper and the proximity of his workstation to the flight lines and jet engines. The Veteran and his wife testified during his September 2019 hearing before the Board that he has suffered from hearing loss since his active service. See id. The Veteran’s service treatment records (STRs) show that whisper tests were performed during his enlistment examination in May 1956 and his separation examination in August 1959, and the results of both of those tests were 15/15; in other words, neither test evidenced hearing loss. The Veteran continued to serve in the Navy Reserve after serving on active duty, and audiometric tests were performed during his period of Reserve service, including, but not limited to, in January 1971. The January 1971 hearing test indicates that the Veteran’s hearing was normal at that time (i.e., the results of the test show hearing that did not qualify as impaired hearing for the purpose of applying the laws administered by VA at that time). See 38 C.F.R. § 3.385. A November 1978 audiometric hearing test also showed normal hearing. The Veteran’s private treatment records show that in February 2014 he was found to have “a mild sloping to severe sensorineural hearing loss bilaterally.” In September 2014, the Veteran’s private physician authored a letter in which she opined that “[t]he type of hearing loss that the Veteran has is one that could be due to aging or due to noise exposure aggravated by his service in the U.S. Navy or both.” In January 2016, a private audiologist completed an Audiologic Report and opined therein that “[b]ased upon the degree and configuration of [the Veteran’s hearing test] results, [she was] unable to determine if [the Veteran’s] hearing loss is secondary to his service in the military and/or due to Presbycusis (age related hearing loss).” In February 2015, the Veteran was afforded a VA examination for his hearing loss, and the examiner opined that the Veteran’s hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner reviewed the Veteran’s claims file before rendering the opinion, and the examiner’s rationale for the opinion was that: (a) the Veteran’s whisper tests showed normal hearing upon entrance to and exit from active service; (b) the test completed in 1971 also showed normal hearing; and (c) the Institute of Medicine (2006) stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure and that such delayed onset is unlikely. However, the Board notes that the examiner did acknowledge that whisper tests like those conducted upon entrance to and exit from active service are not sufficient for detecting high frequency hearing loss which is typical of hearing loss induced by noise exposure. There is no other competent evidence in the claims file that is pertinent to the etiology of the Veteran’s hearing loss. The Board finds, upon review and consideration of the foregoing, that the Veteran is not entitled to service connection for hearing loss. Aside from the Veteran’s and his wife’s statements, none of the other competent evidence in the claims file indicates that his hearing loss has persisted since his active military service or is due to his in-service noise exposure. The VA examination report clearly indicates that it is not at least as likely as not that the Veteran’s hearing loss began during his active service or was caused by his in-service noise exposure. The Veteran’s STRs show that he did not have hearing loss during his active service from 1956 to 1959, at the time of his annual examination in 1978, or at any point in time prior thereto. The VA examination report is based upon review of the Veteran’s claims file, including his STRs, and relevant medical literature, and the examiner’s opinion is consistent with the hearing test results in the Veteran’s STRs. And while the Veteran and his wife contend that he has suffered from hearing loss since his active service, and they are competent to report his hearing difficulties, they are not competent to determine whether and at what point he developed impaired hearing as described in 38 C.F.R. § 3.385. Nor are they competent to otherwise opine on the etiology of his hearing loss. Such issues are medically complex, as a diagnosis and a competent opinion as to etiology require medical training and credentials. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Hearing loss can have many causes, and whether the noise the Veteran was exposed to in service are in any way related to his current hearing loss disability requires medical expertise to determine.  See Clyburn v. West, 12 Vet. App. 296, 301 (1999).  The Veteran’s assertions are outweighed by the findings of the VA examiners. The preponderance of the competent and probative evidence of record weighs against finding that the Veteran’s hearing loss was incurred during his active service or within one year of his discharge therefrom or that it is caused by any event or injury in active service. As such, the Board finds that the Veteran is not entitled to service connection for bilateral hearing loss, and the appeal therefor is denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for vertigo The Veteran claims that he was exposed to excessive noise while on active duty, he recalls first experiencing vertigo in the 1960s, and he claims that he continues to suffer from it. He reported that he has sought medical treatment for the condition, and that one of his private physicians opined that his vertigo was due to in-service noise exposure. In disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the Veteran’s medical records show complaints of vertigo and dizziness, he claims an in-service event (noise exposure), he claims that his physician has opined that the vertigo/dizziness is related to his in-service noise exposure, and there is insufficient evidence to determine whether the vertigo/dizziness is related to his service. Therefore, the Board finds that, per McLendon, the Veteran should be afforded a VA examination for the purpose of assessing the nature and etiology of the Veteran’s claimed vertigo. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) for his claimed vertigo. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s vertigo (if any) at least as likely as not related to service, including any in-service noise exposure or acoustic trauma? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? A complete rationale for each opinion must be provided. If the examiner is unable to formulate any opinion without resorting to speculation, he or she must indicate why this is so. Further, if the examiner discounts any of the Veteran’s lay statements and/or finds them not credible, a complete explanation must be provided. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.