Citation Nr: 21061841 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 19-00 766A DATE: October 5, 2021 ORDER Service connection for left ear hearing loss is denied. FINDING OF FACT Left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office. In May 2021, the Board remanded the claims for service connection for bilateral pes planus and bilateral hearing loss for additional development. While on remand, a July 2021 rating decision awarded service connection for bilateral pes planus and right ear hearing loss. As such are full grants of the benefits sought on appeal with respect to these issues, these matters are no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The remaining issue now returns to the Board for further appellate review. Entitlement to service connection for left ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that high frequency sensorineural hearing loss is considered an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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 claims that his current left ear hearing loss is related to in-service noise exposure. As an initial matter, the Board observes that the record, to specifically include July 2016 and June 2021 VA examinations, reflect the Veteran has a current diagnosis of left ear hearing loss as defined by VA regulations. 38 C.F.R. § 3.385. Additionally, his in-service noise exposure has been acknowledged as a result of his military occupational specialty (MOS) as an auto repairman, which resulted in a moderate level of noise exposure. Thus, the remaining inquiry is whether the Veteran's current left ear hearing loss is related to his acknowledged in-service noise exposure. In this regard, the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnosis of left ear hearing loss. Further, audiometric testing at the time of his April 1964 entrance examination revealed 0 decibels from 500 to 8000 Hertz, and audiometric testing at the time of his March 1968 separation examination revealed -5, -10, -10, -5, 5, and 10 decibels at 500, 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. At a July 2016 VA examination, the examiner reviewed the record, interviewed the Veteran, and conducted an audiometric evaluation, and opined that it was not at least as likely as not that that the Veteran's left ear hearing loss is caused by or a result of an event in military service. In support of such opinion, she found that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz. The examiner further explained that the Veteran's STRs reflected that he had normal hearing levels during military service as evidenced by his April 1964 and March 1968 audiograms. In May 2021, the Board remanded the case in order to obtain an addendum opinion addressing the etiology of the Veteran's left ear hearing loss that considered his acknowledged in-service noise exposure and some degree of a threshold shift in his hearing acuity at 4000 and 6000 Hertz from his April 1964 entrance examination to his March 1968 separation examination. Thus, at a June 2021 VA examination, the examiner reviewed the record, interviewed the Veteran, and conducted an audiometric evaluation, and opined that it was not at least as likely as not that that the Veteran's left ear hearing loss is caused by or a result of an event in military service. In support of such opinion, she acknowledged that, while the Veteran's MOS had a moderate probability of hazardous noise exposure, his STRs did not demonstrate a significant threshold shift in his left ear hearing acuity and he had normal hearing at his April 1964 and March 1968 examinations. In this regard, the examiner explained that a significant threshold shift was defined as 15 decibels or greater and there was no evidence of such a shift in the Veteran's left ear hearing acuity from his April 1964 entrance examination to his March 1968 separation examination. She further stated that, while the medical community acknowledged delayed onset hearing loss, for such to be considered to be related to in-service noise exposure, STRs would need to indicate that a significant threshold shift occurred, which was not shown in the instant case. The Board affords great probative weight to the June 2021 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the Veteran's statements and his relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board has also considered the Veteran's assertions that his left ear hearing loss is related to his in-service noise exposure. However, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the auditory system and the impact acoustic trauma/noise exposure has on it. Thus, such matter may not be competently addressed by lay evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's opinion as to the etiology of his left ear hearing loss is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that the Veteran's left ear hearing loss manifested to a compensable degree within one year of his separation from service. In this regard, as noted previously, his left ear hearing acuity was normal at the time of his separation examination in March 1968 and, while he meets the criteria for a diagnosis of hearing loss as defined by VA regulations on audiometric testing in July 2016 and June 2021, such fail to show that he meets the criteria for a compensable rating to date. 38 C.F.R. § 4.86, Diagnostic Code 6100. Consequently, presumptive service connection for left ear hearing loss, to include on the basis of a continuity of symptomatology, is not warranted. In conclusion, the Board finds that left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.