Citation Nr: 21004507 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-16 974 DATE: January 27, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss onset during or was caused by his active duty service, manifested to a compensable degree within a year of his separation from service, or was noted in service with continuity of symptomatology thereafter. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 4.85 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1966 to June 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, a hearing was held before the undersigned. A transcript of the hearing is of record. In December 2017 and September 2019, the Board remanded the Veteran’s appeal to the RO for further evidentiary development. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss onset during active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing entitlement to direct service connection generally requires: (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 - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases (such as hearing loss as an organic disease of the nervous system) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the evidence, the Veteran’s report of medical history and report of medical examination in November 1965 showed no hearing impairment. The Veteran’s service treatment records contain no complaints, diagnosis, or treatment for hearing loss. The Veteran had audiometric testing completed on entrance in November 1965 and prior to separation in April 1968, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10   In the November 1965 entrance audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0/15 0/10 0/10 N/A 0/5 LEFT 0/15 0/10 0/10 N/A 0/5 Speech recognition was not tested. On April 1968 examination for separation purposes, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5/10 -10/0 -10/0 -5/5 0/5 LEFT 5/20 5/15 0/10 -5/5 0/5 Speech recognition was not tested. In June 1968, the Veteran signed a statement that his medical condition had not changed since the April 1968 examination.   The Veteran underwent a VA hearing examination in June 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 10 35 LEFT 10 10 10 10 45 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. The examiner opined that hearing loss was not at least as likely as not related to his service. The examiner’s rationale was based on the Veteran having better hearing at selected frequencies on separation with no significant shifts or declines at separation. The examiner indicated that there was no noted indication or complaint of hearing loss in service and no other documentation in the claims file to indicate an onset of hearing loss significant for VA purposes with a reasonable time after service. In a January 2014 VA treatment record, the Veteran complained of hearing loss and said that he had hearing loss since the 1970s. The Veteran testified before the Board in July 2017. The Veteran testified that he was exposed to hazardous noise during firearms training and when he was deployed during the 1967 Detroit riot. The Veteran stated that he had difficulty hearing in 1967 and that it had worsened since that time. He said that a private doctor had treated him for hearing loss. The Veteran’s wife testified that since they married in 1998, the Veteran often has not heard her talking. Service records and DPRIS research show that the Veteran was attached to the XVIII Airborne Corps and 82nd Airborne Division and deployed during the Detroit riots. The Veteran was afforded another VA hearing examination in July 2018. The examiner stated that the Veteran’s hearing could not be tested because the speech recognition thresholds and pure tone averages were inconsistent and there were inconsistent responses to pure tones. The examiner stated that positive Stenger tests confirmed that the Veteran’s responses were unreliable. The Veteran reported that he had post-service noise exposure as a landscaper. The Veteran underwent another VA examination for hearing loss in May 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 15 30 LEFT 25 20 10 5 45 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and left ears. The examiner diagnosed bilateral sensorineural hearing loss but found no permanent positive threshold shift in either ear and said that the hearing loss is less likely than not caused by the Veteran’s service because his pre-induction and separation audiograms were within normal limits and there were no complaints or diagnosis of hearing loss in service. The examiner noted that the Veteran worked in landscaping for 40 years after service and wore hearing protection sometimes but not always, and that the Veteran has diabetes mellitus type II which can lead to hearing impairment. In December 2019, a VA medical opinion was obtained for the Veteran’s hearing loss. The audiologist reviewed the record and stated that it was less likely than not that the Veteran’s hearing loss was caused by or onset during service because the Veteran’s separation examination showed hearing within normal limits in April 1968 and he denied hearing loss at that time, and the Veteran’s service treatment records showed no reports or diagnosis of hearing loss, and the Veteran has a history of hazardous noise exposure post-service due to working in landscaping. The examiner noted that the Veteran was later diagnosed with diabetes which is a systemic disease known to be associated with hearing loss. The examiner also noted that presbycusis could not be ruled out as the extent of noise exposure associated with his post-service employment as a casino landscaper was unknown. The examiner also opined that it was less likely than not that any hearing loss began during active service, manifested within one year after discharge from service, or was noted during service with continuity of symptomatology since service. In support of this opinion, the examiner noted that the earliest record of hearing loss was in July 2013, that he had no hearing complaints in service, and that his separation audiograms were within normal limits. He also noted that there was no documentation in the record to indicate an onset of hearing loss significant for VA purposes within a reasonable time post active duty time. Turning to the criteria for service connection, the June 2013 VA examination showed hearing loss in both ears which met the definition of hearing impairment for VA purposes. 38 C.F.R. § 3.385. The May 2019 examination showed hearing loss for VA purposes in the left ear but not the right. Id. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran has had bilateral hearing loss during the appeal period and thus has a current disability of bilateral hearing loss. Shedden, 381 F.3d at 1166-67. Concerning the second element of direct service connection, that of an in-service injury or incident, the record indicates that the Veteran was exposed to hazardous noise in service. In October 2015, Defense Personnel Records Information Retrieval System noted that the Veteran’s unit was deployed to Detroit in 1967 in response to the riots. In his July 2017 testimony and in a December 2019 letter, the Veteran stated that during his deployment in the riots, he was exposed to noise from gunfire and exploding buildings. The Veteran’s statements regarding what he experienced in service are competent and are credible as they are consistent with the other evidence, and therefore, the Board finds that the Veteran was exposed to hazardous noise during his service. Shedden, 381 F.3d at 1166-67. However, the evidence is against a finding that the Veteran’s current bilateral hearing loss was caused by or onset during his active duty service. The Veteran has contended that his hearing loss was caused by gunfire noise during training and gunfire and explosions during the 1967 riots. However, the preponderance of the evidence is against his claim. The Veteran denied hearing loss in April 1968 and his April 1968 hearing examination was within normal limits. There is no evidence of hearing loss until the July 2013 VA hearing examination. As discussed above, the record contains a December 2019 VA medical opinion concluding that it is less likely than not that the Veteran’s hearing loss was caused by military service. The Board affords this opinion great weight of probative value as it reflects a thorough review of the record, discussion of the pertinent evidence, and discussion of alternative etiologies for the hearing loss. The Board has considered the statements of the Veteran and his wife; as laypersons, they are competent to testify regarding observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the probable etiology of a disorder such as hearing impairment falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Neither the Veteran nor his wife have demonstrated or alleged expertise in determining a medical nexus, and they do not offer any supporting medical opinion. Therefore, their opinion in this matter has no probative value. The preponderance of evidence is also against a finding that sensorineural hearing loss manifested to a compensable degree within one year of service separation to establish presumptive service connection under 38 C.F.R. § 3.309 or was noted in service with continuity of symptomatology thereafter. The April 1968 separation audiogram does not show that hearing loss manifested to a compensable degree at service separation, and the earliest evidence of a hearing loss disability in either ear was the Veteran’s hearing examination in June 2013, about forty-five years after service separation. Although the Veteran claimed in his testimony before the Board and in his December 2019 written statement that his hearing impairment had its onset during service, other evidence does not support that claim. The Veteran’s service treatment records show no complaint, symptoms, diagnosis, or treatment for hearing loss while in service. The Veteran's separation examination in April 1968 included an audiogram examination which showed his hearing to be within normal limits, and the Veteran signed a Statement of Medical Condition in June 1968, which stated that to the best of his knowledge there had been no change in his medical condition since the April examination. Importantly, the Veteran denied having any hearing loss in his April 1968 report of medical history. The Board finds the Veteran’s April 1968 statement that he had no hearing loss to be more credible than his recent statements that he had hearing loss at that time because the earlier statement was contemporaneous with his condition at that time and supported by the objective audiometric testing, whereas his recent statements may be impaired by the amount of time that has passed. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995). To be clear, the Board is not questioning the Veteran’s honesty or moral character. The Veteran is attempting to recollect events that transpired a long time ago and the passage of time, along with the inconsistencies noted above, compels the conclusion that the Veteran is not an accurate historian as to statements regarding when he first noticed hearing loss. The evidence does not indicate that the Veteran’s hearing loss manifested to a compensable degree within a year of separation from service because the Veteran’s hearing loss is at a noncompensable level in recent tests. 38 C.F.R. § 4.85. Finally, the VA opinion found in December 2019 that it was less likely than not that the Veteran’s hearing loss manifested to a compensable degree within a year of separation or showed a continuity of symptoms since separation from service based on the Veteran’s records. The preponderance of the evidence is against a finding that the Veteran’s hearing loss had its onset within one year of leaving the service or that it was noted in service with continuity of symptomatology since leaving service. For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss is related to his service. Accordingly, service connection for bilateral hearing loss is denied. 38 C.F.R. § 3.303, 3.304. In reaching this conclusion, 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. 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). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.