Citation Nr: 21061668 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-27 386 DATE: October 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss did not manifest during active service and is not causally related to noise exposure during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2021. A transcript of that hearing has been associated with the claims file. The Board remanded the issue for further development in April 2021. The claim has been returned to the Board for appellate review. The Board notes that actions requested in the prior remands have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Entitlement to service connection for bilateral hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has bilateral hearing loss that is causally related to his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in January 2017. At the time of the examination, the Veteran's puretone thresholds in dB were as follows: HERTZ 500 1000 2000 3000 4000 Right Ear 40 30 35 40 50 Left Ear 40 40 45 45 50 Speech discrimination scores were 100 percent in the right ear and 96 percent in the left ear. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss and evidence shows that the Veteran had noise exposure during service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. Service treatment records show no complaints, treatment, or diagnosis of hearing loss during active service. Specifically, a November 1971 separation examination noted normal ears and drums with a 15/15 whisper test. On the corresponding separation report of medical history, the Veteran noted no current or past hearing loss. In January 1972, after separation from service, the Veteran was afforded a VA examination. The examiner specifically indicated that no hearing loss was noted. VA treatment records are silent for any complaints, treatment, or diagnosis of hearing loss. Specifically, in November 2006 a VA treatment record was negative for hearing loss. In January 2007, the Veteran denied symptoms of hearing loss. The Veteran was afforded another VA examination in January 2017. The examiner reviewed the claims file and performed an in-person examination. The examiner noted no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for the right ear. The Veteran's hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner acknowledged the Veteran's noise exposure during service to include due to his position as a helicopter repairman and his combat service. The Entrance audiogram showed normal hearing in both ears. Separation physical examination showed only whisper testing. The examiner noted no complaint or diagnosis of hearing loss since separation. Given the more than forty-year gap between the end of the Veteran's service and current testing showing hearing loss, the examiner found nothing in the medical or scientific literature that would support the contention for a long-delayed onset of hearing loss as a result of noise exposure. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran testified at a hearing in February 2021. The Veteran acknowledged that he did not seek treatment for hearing loss during service or for a number of years after separation. The Veteran stated that he first noticed hearing loss around 2000. The Veteran believes his hearing loss is related to his in-service noise exposure. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the medical evidence of record. (Continued on the next page) Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for bilateral hearing loss. As the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patricia Veresink, 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.