Citation Nr: 21004689 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-16 868 DATE: January 27, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran has verified service in the Republic of Vietnam; noise exposure in service is conceded based on the circumstances of his military service. 2. The Veteran’s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically 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, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1967 to October 1969, with verified service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded this matter for further development, which has since been completed. 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, 5107; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Hearing loss, for VA disability compensation purposes, is considered a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. Entitlement to service connection for bilateral hearing loss. The Veteran contends he has a bilateral hearing loss disability as a result of noise exposure during service. He has a current diagnosis of a bilateral sensorineural hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385; see also July 2013 VA examination. His service records reflect that his military occupational specialty (MOS) was as medical corpsman and he was an aidman during his service in the Republic of Vietnam. The circumstances of his military service are consistent with the reported noise exposure. As such, the Board concedes the Veteran had noise exposure in service. 38 U.S.C. § 1154(a). While the Veteran’s report of in-service exposure to loud noise is conceded, the Board notes that the Veteran is not considered a ‘combat Veteran.’ That is, review of his DD 214 and his personnel records do not reflect award of any combat-related decorations. Further, the Veteran has not otherwise specifically averred that he engaged with combat with the enemy while serving in Vietnam. His statement in a May 2013 VA Form 21-4138, Statement in Support of Claim, wherein he indicated there were “rumors of them … being overrun” on occasion in Vietnam, do not warrant application of a combat presumption as found in 38 U.S.C. § 1154(b). Thus, the question remains as to whether a nexus, or a link between the current disability and the in-service noise exposure has been shown. As an initial matter, the Board notes the Veteran’s service treatment records are unavailable. See August 2013 VA administrative decision. In its formal finding, VA outlined the steps taken to obtain the records and has provided opportunities for the Veteran to furnish them. He has not provided any copies and has not otherwise asserted that he was diagnosed with or sought treatment for hearing loss in service. Turning to the evidence of record, the first report of hearing loss was in December 2005. A January 2006 private treatment letter reflected that the Veteran presented with a history of diminished hearing one month prior. He was diagnosed with bilateral high-frequency, mild-to-moderate sensorineural hearing loss, symmetrical in both ears. No etiology opinion was provided. In February 2010, the Veteran visited a private Ear, Nose, and Throat (ENT) specialist. Dr. P.A. noted the Veteran, then at age 65 years old, was seen for complaints of decreased subjective hearing that has been slowly progressive. Dr. P.A. noted that an audiogram was performed which showed that he had bilateral symmetrical mild-to-moderate downsloping sensorineural hearing loss consistent with his age. He found that the Veteran had age-appropriate sensorineural hearing loss. An October 2012 VA audiology consultation indicated that he reported bilateral hearing loss for the past several years. The Veteran reported a history of military noise exposure via artillery, mortar, rifle or machine gun fire, as well as post-service noise exposure to construction noises while working as an Occupational Safety and Health Administration (OSHA) safety inspector. Other VA treatment records the sought services for his hearing aids. The Veteran contends that he has lost some hearing during service. He reported that in service, their long-time compound was at the base of a small mountain. On top were batteries of 155 mm guns. From time-to-time, when rumors of them were being overrun, they would have to move up top, under the sound of the “big guns” for the night. See May 2013 VA Form 21-4138, Statement in Support of Claim. At the July 2013 VA examination, the Veteran reported working as a medic with exposure to weapons fire, explosives, and mortar noise. He also reported working in construction safety after separation from service and was exposed to construction and equipment noise, with occasional use of ear protection devices. The audiological evaluation showed a bilateral hearing loss disability for VA compensation purposes, but the examiner did not provide a medical opinion, as she marked “no” to the question on whether a medical opinion was requested. Pursuant to the Board’s remand, the Veteran was afforded a VA contract examination in December 2019. At the exam, he reported that his MOS was combat medic and that he was exposed to weapons fire, mortars, artillery, explosives, and small arms fire noises during service. Post-service, he was exposed to construction and school noises. After a review of his claims file, medical history, and lay statements, the audiologist opined that his bilateral hearing loss was less likely than not due to service. The audiologist noted that there were no audiological service records for review and comparison, and thus, it could not be determined that hearing loss began in service. There were also no medical records from within one year of discharge from service, and therefore, again, it could not be determined that hearing loss began within one year of service. There is no continuity of symptomatology since service, since there was no in-service report for review. The audiologist did find that the bilateral hearing loss was at least as likely as not age appropriate. The rationale was that the Veteran had a history of construction work following service and that he was seen by at the age of 65 by an ENT who deemed his hearing loss age appropriate. In a September 2020 addendum medical opinion, the VA-contracted audiologist added that it was less likely than not the Veteran’s current bilateral hearing loss was related an in-service injury, event, or disease, including noise exposure due to his MOS. The rationale was that even though excessive noise exposure on active duty is conceded, and hearing loss is present, there is no nexus of auditory damage on active duty supported by medical records to relate the current report of hearing loss to military service. Based on the evidence of record, service connection for bilateral hearing loss is not warranted on a direct basis. The preponderance of the evidence is against finding that competent evidence of a causal nexus exists between the Veteran’s bilateral hearing loss and the in-service noise exposure. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The rationale of the December 2019 VA contracted medical opinion and the September 2020 addendum opinion were based on a review of the claims folder, consideration of the Veteran’s statements, and supported by the clinical evidence of record. The audiologist provided a cogent explanation. These opinions are probative. Moreover, Dr. P.A., a specialist, noted that he had age-appropriate sensorineural hearing loss and the October 2012 VA audiology consultation reflected he reported bilateral hearing loss for only the past several years. For these reasons, the objective evidence of record is against finding that a link has been shown. While the Veteran sincerely believes that his bilateral hearing loss is related to his in-service noise exposure, he is not competent to provide a nexus opinion in this case. The diagnosis and etiology of bilateral sensorineural hearing loss falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board has also considered whether service connection is warranted on a presumptive basis for chronic diseases or under the continuity of symptomatology framework. However, the first indication of medical treatment for diminished hearing was not until December 2005, which is decades after separation from service and thus, against finding that this disability manifested to a degree of 10 percent or more within a year of separation from service. Therefore, presumptive service connection is not warranted, and the continuity of symptomatology framework is not for application. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Based on the foregoing, service connection is not warranted for a bilateral hearing loss disability. As preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Tang, 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.