Citation Nr: 21063702 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 20-02 715 DATE: October 15, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss was not caused by service and did not manifest to a compensable degree within one year of service separation. 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, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1965 to December 1967. This matter was previously before the Board of Veterans' Appeals (Board) in April 2021 and remanded for further development. Specifically, the April 2021 Board remand instructed the agency of original jurisdiction (AOJ) to attempt to locate the December 2018 audiologist opinion provided by Dr. B referenced in the February 2021 VA examination and, if located, associate it with the Veteran's claims file. Additionally, the remand instructed the AOJ to attempt to additional audiological evaluations and treatment records stored separately in the VistA Imaging system contained in the available VA records. In particular, the Board instructed the AOJ to associate all records scanned into VistA for the entire period on appeal, including the March 2013 ENT private consultation and December 2010 VA primary care clinic note referencing ENT test results in the VistA Imaging system. The AOJ was also instructed to provide the Veteran with another opportunity to identify any outstanding private treatment records relevant to his claim. Additional VA medical records from December 2010 and from December 2020 to June 2021 were associated with the claims file In June 2021 VA requested information regarding the December 2010, March 2013, and December 2018 records. In response, no record of the December 2018 audiologist record was found. However, the response provided a December 2010 VA primary care clinic note showing reported dizziness, especially in the dark. The Veteran reported that he stopped using prescribed medication, Finasteride, after which his dizziness was reduced to an acceptable level. The record also contains a notation of a videonystagmography (VNG) test, conducted by an ear, nose, and throat (ENT) specialist, which was noted to show a 22 percent caloric weakness in the left ear. The response contained no record of the March 2013 ENT consultation. On June 11, 2021, VA requested that the Veteran complete and return VA Form 21-4142 and VA Form 21-4142(a), and to identify any outstanding private treatment records relevant to his claim, to include the treatment records from the University of Nebraska Medical Center ENT Department. The Veteran was notified that a decision may be made on his claim after 30 days if a response was not received. However, as of the date of this decision, no response has been received. On July 16, 2021, VA provided the Veteran with a supplemental statement of the case, which denied service connection for bilateral hearing loss. Further development having been completed in accordance with the April 2021 Board remand; the matter is once again before the Board. 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 hearing loss is related to in-service noise exposure as an infantry radio mechanic without proper ear protection. The Veteran's service personnel records reveal that he had a military occupational specialty (MOS) of infantry radio mechanic. Such MOS has been associated with a high likelihood of exposure to acoustic trauma. Therefore, the Veteran's in-service exposure to acoustic trauma is established. 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 record indicates that the Veteran has a current diagnosis of bilateral hearing loss. The October 1965 report of medical examination at service entrance shows a normal clinical evaluation of the ears. The audiogram at service entrance shows pure tone thresholds, in decibels, were as follows in the right ear: 5dB 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: 0dB at 1000Hz; 0dB at 2000Hz; not recorded at 3000Hz; and 10dB at 4000Hz. The October 1967 report of medical examination at service separation shows a normal clinical evaluation of the ears. The audiogram at service separation shows pure tone thresholds, in decibels, were as follows in the right ear: 0dB at 1000Hz; 0dB at 2000Hz; 0dB at 3000Hz; and 0dB at 4000Hz. Pure tone thresholds, in decibels, were as follows in the left ear: 0dB at 1000Hz; 0dB at 2000Hz; 0dB at 3000Hz; and 0dB at 4000Hz. The October 1967 report of medical history at service separation shows that the Veteran endorsed then having or ever having had ear, nose, or throat trouble. However, he denied then having or ever having had hearing loss. The Veteran's service treatment records do not contain any complaints, treatment, or diagnosis of hearing loss. An August 2010 VA audiology consultation note shows that the Veteran reported having had bilateral tinnitus for at least 40 years, but "no real hearing issues." He reported exposure to gunfire and helicopter noise in Vietnam and that he worked in construction afterward. The examiner noted that the Veteran has essentially normal hearing at the 25 to 3000Hz frequency range, with a rather precipitous drop to moderate sensorineural hearing loss in the frequency range of 4000 to 8000Hz. An August 2010 VA emergency department note shows that the Veteran complained of hearing loss. A December 2010 VA primary care outpatient note shows that the Veteran reported that he was seen by an ENT specialist who conducted a VNG test. A December 2010 VA primary care outpatient note shows reported dizziness, especially in the dark. The Veteran reported that he stopped using the medication, Finasteride, and the symptom was reduced to an acceptable level. The record also contains a notation of a VNG test, conducted by an ENT specialist, which was noted to show a 22 percent caloric weakness in the left ear. During the December 2010 VA hearing examination, the Veteran reported in-service noise exposure from helicopters, gun fire, and machine guns. He denied recreational noise exposure. The examiner noted a diagnosis of bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss is not a result of noise exposure in-service. The examiner stated the Veteran had significant noise exposure in-service, but that his hearing test at separation was entirely normal in the frequency range of 500 to 4000Hz. The examiner stated that exposure to either impulse sounds or continuous exposure can cause temporary threshold shift, which usually abates in 16 to 48 hours after the exposure, and impulse noise may also result in immediate and permanent hearing loss. The examiner also stated that continuous and repeated exposure to loud noise may also cause permanent hearing loss. However, the examiner stated that since the damage from noise exposure occurs at the time of the exposure, a normal audiogram after the noise exposure would verify that the hearing recovered without a permanent threshold shift hearing loss. The examiner noted that additional noise exposure, aging, and health conditions since military separation are likely contributing factors in the Veteran's hearing loss. A March 2013 VA ENT consultation shows that the Veteran was seen by otorhinolaryngology. However, no further indication of the type of care is documented. A December 2017 VA geriatric consultation note shows that the Veteran reported difficulty hearing the television and that his spouse complains that he watches television on too high of a volume. A June 2018 VA primary care clinic note shows that the Veteran's hearing was noted as normal. In January 2020, the Veteran submitted an abstract from an article on human response to helicopter noise. However, the abstract states that the study, which is not contained in the file, is an extension of earlier research in which an Army UH-1H helicopter was flown over a test site that included a farmhouse, a tent, and a new mobile home. The abstract is not specific to helicopter noise induced hearing loss in military members. Thus, the abstract is of no probative value as to the etiology of the Veteran's hearing loss. During a December 2020 VA psychology consultation, the examiner noted that the Veteran did not exhibit any problems with his hearing. During the February 2021 VA hearing examination, the examiner noted bilateral sensorineural hearing loss. The Veteran reported that he was exposed to machine gun fire, helicopters, and jets during his service without ear protection. He reported onset of hearing loss in 2000. He reported that post-service, he performed electrical work for the railroad, then worked in road construction without hearing protection. The examiner opined that it is less likely as not that the current hearing loss is related to in-service noise exposure. The examiner noted that the Veteran reported onset of hearing decrease 29 years post-service, after exposure to occupational noise. The examiner stated that although noise exposure is conceded and the relationship between noise, auditory damage, and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone. The examiner stated that there is no evidence to support a nexus between the Veteran's current hearing loss and his in-service noise exposure, and not another etiology. Although the Veteran has current bilateral hearing loss for VA purposes, a preponderance of the evidence is against a finding that his disability was caused by his in-service noise exposure. While in-service noise exposure has been conceded, there is no medical evidence of a nexus between the Veteran's current bilateral hearing loss and his in-service noise exposure. The Veteran contends that his in-service noise exposure caused his disability. However, the Veteran is not competent to provide an etiological opinion. The December 2010 and February 2021 VA examiners opined the Veteran's bilateral hearing loss is less likely as not related to in-service noise exposure. The December 2010 VA examiner stated that additional noise exposure, aging, and health conditions since military separation are likely contributing factors to the Veteran's hearing loss. The February 2021 VA examiner noted that the Veteran reported onset of hearing loss in 2000 and post-service, he performed electrical work for the railroad, then worked in road construction without hearing protection. The examiner noted that the Veteran reported onset of hearing decrease 29 years post-service, after exposure to occupational noise, and stated that there is no evidence to support a nexus between the Veteran's current hearing loss and his in-service noise exposure, and not another etiology. Other than the VA audiological examinations, the file does not contain any other medical evidence since the Veteran separated from service regarding any complaints of hearing loss that would help establish that the Veteran's bilateral hearing loss was caused by service. The record does not contain evidence that the Veteran's bilateral hearing loss manifested to a compensable degree within one year of service separation. Regarding the issue of continuity of symptomology, as the Veteran's condition is contemplated by 38 C.F.R. § 3.309 and would be subject to consideration in accordance with Walker, 708 F.3d at 1331, considering the probative above VA opinions, there is no credible evidence of continuity of symptomatology. The only other evidence in the claims file supporting the existence of hearing loss that has been caused or aggravated by in-service noise exposure is the Veteran's own statements. The Veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-10 (2007). However, the Veteran has no apparent medical or audiological training, and he is not competent to provide an etiological opinion regarding his hearing loss. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Veteran's statements are outweighed by the medical evidence, specifically the 2010 and 2021 VA examinations. In conclusion, in-service noise exposure did not cause the Veteran's bilateral hearing loss, nor did the bilateral hearing loss manifest to a compensable degree within one year of service separation. Therefore, service connection is not warranted, and the claim is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. 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.