Citation Nr: 21062497 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-42 516 DATE: October 7, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence weighs against a finding that the currently diagnosed bilateral hearing loss is related to any incident of service, including in-service noise exposure, or manifested to a compensable degree within one year following separation from service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1970 to August 1973. This matter was previously before the Board of Veterans' Appeals (Board) in April 2019 when the Board found that the June 2016 VA audiological examination was not adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, the issue of service connection for bilateral hearing loss was remanded for a new VA audiological opinion. Pursuant to the April 2019 Board remand, the Veteran was afforded a new VA audiological opinion in November 2019. Further development having been completed in accordance with the April 2019 Board remand; the matter is once again before the Board. After a review of the probative medical evidence of record, service connection for bilateral hearing loss will be denied. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307(a)(3), 3.309(a). Sensorineural hearing loss is a chronic disease as it is an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2015). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Board is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §§ 5107(b). Service connection for bilateral hearing loss is denied. The Veteran contends that his bilateral hearing loss began in-service as a field radio operator. For the following reasons, service connection is not warranted, and the claim is denied. Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. §§ 3.385. The Veteran has bilateral sensorineural hearing loss which meets the requirements stated in 38 C.F.R. §§ 3.385. The May 1970 audiogram at service entrance shows pure tone thresholds, in decibels, were as follows in the right ear: 10dB at 1000Hz; 5dB at 2000Hz; not recorded at 3000Hz; and 5dB at 4000Hz. Pure tone thresholds, in decibels, were as follows in the left ear: 10dB at 1000Hz; 5dB at 2000Hz; not recorded at 3000Hz; and 20dB at 4000Hz. During the July 1973 report of medical examination, a clinical evaluation of the ears was noted as normal. There is no documentation of any complaints of hearing loss at separation. The July 1973 audiogram at service separation shows pure tone thresholds, in decibels, were as follows in the right ear: 5dB at 1000Hz; 5dB at 2000Hz; 10dB at 3000Hz; and 5dB at 4000Hz. Pure tone thresholds, in decibels, were as follows in the left ear: 10dB at 1000Hz; 10dB at 2000Hz; 30dB at 3000Hz; and 30dB at 4000Hz. The Veteran's service treatment records do not contain any complaints, treatment, or diagnosis of hearing loss. During the June 2016 VA examination, the examiner noted a diagnosis of bilateral sensorineural hearing loss. The examiner opined that the Veteran's bilateral hearing loss was less likely than not related to service, including in-service noise exposure, because the audiogram at separation showed normal hearing with no significant pure tone threshold shifts compared with the entrance audiogram. The examiner noted that the Veteran's July 1973 separation examination shows pure tone thresholds in the left ear of 30dB at 3000Hz and 4000Hz. The examiner stated that there was no significant threshold shift between entrance and separation when comparing the audiogram at separation with the pure tone thresholds at enlistment. However, the separation examination shows pure tone thresholds in the left ear of 30dB at 4000Hz compared with the entrance audiogram showing pure tone threshold of 20dB at that frequency. Therefore, the Veteran had some hearing loss in the left ear at separation, even if it was not severe enough to qualify as a disability under VA law. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also 38 C.F.R. § 3.385. The examiner did not address whether a 10dB shift at 4000Hz in the left ear is clinically significant. The examiner also stated that the Veteran's left ear hearing at separation is not consistent with acoustic trauma, which alone does not rule out a relationship between the hearing loss shown at separation and the Veteran's current hearing loss disability, whatever the causes may have been for the in-service hearing loss. Therefore, the June 2016 VA examination is not adequate as to the etiology of the Veteran's current bilateral hearing loss. Barr, 21 Vet. App. at 303. Pursuant to the April 2019 Board remand, the Veteran was afforded a VA audiological examination in November 2019. Specifically, the examiner was asked to opine as to whether the Veteran's current bilateral hearing loss is related to in-service noise exposure, and to address the 10dB shift at 4000Hz in the left ear between the entrance and separation audiogram. The examiner noted a diagnosis of bilateral sensorineural hearing loss and opined that it is less likely than not that the Veteran's bilateral hearing loss was caused by or a result of his service, to include acoustic trauma in-service. The examiner stated that there was no significant threshold shift noted between entrance and separation, and the audiometric configuration at separation was not consistent with acoustic trauma. The examiner stated that when evaluating the Veteran's current degree of hearing loss, one cannot rule out contributions from his occupational noise exposure and aging effects. The examiner stated that if hearing is normal at discharge and there is no permanent significant threshold shift greater than normal measurement variability during service, then there is no basis on which to conclude that current hearing loss is causally related to service, including in-service noise exposure. The examiner stated that there is no nexus between any current hearing loss and service, regardless of the cause of the hearing loss. The examiner noted that the Veteran had normal auditory thresholds at separation and a standard threshold shift did not occur for either ear when comparing the entrance and separation evaluations. The examiner noted that a 2005 Institute of Medicine report concluded that, based on current knowledge of cochlear physiology, there is insufficient scientific evidence for delayed-onset of hearing loss secondary to military noise exposure. The examiner stated that hearing loss should occur at the time of the exposure and there is not sufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop years after military noise exposure. The examiner noted that the available anatomical and physiologic evidence suggests that delayed post-exposure noise induced hearing loss is not likely. The examiner stated that if hearing is normal at discharge and there is no permanent significant threshold shift greater than normal progression and test/re-tests variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to service, including noise exposure. The examiner concluded that there is no nexus between any current hearing loss and service, regardless of the cause of the hearing loss. The Veteran's report of noise exposure in-service is consistent with the circumstances of his service. However, the Veteran was not diagnosed with bilateral hearing loss until June 2016 and there is no medical opinion evidence linking the Veteran's current bilateral hearing loss to service, to include in-service noise exposure. Instead, the only probative medical opinion of record is that of the November 2019 VA examiner, which found no medical link between the Veteran's bilateral hearing loss and his service. The Veteran is competent to describe his symptoms of decreased hearing in-service as well as continuity of such symptomatology after service. See Charles v. Principi, 16 Vet. App. 370 (2002). However, while he is competent to report noise exposure in service and to describe subjective symptoms, the diagnosis and extent of hearing loss and the etiology of such require medical testing and expertise to determine. As a lay person, the Veteran's opinion as to the onset and etiology of hearing loss is not competent medical evidence. Jandreau, 492 F.3d at 1376-77. As noted above, the Veteran has not provided any competent evidence supporting a finding that his bilateral hearing loss is related to his service, including in-service noise exposure. The preponderance of the evidence is against a finding that the Veteran's service, to include in-service noise exposure, caused his bilateral hearing loss. Therefore, service connection is not warranted, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.