Citation Nr: 21065590 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-31 543 DATE: October 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Hearing loss was not shown in service or for many years thereafter and the preponderance of the evidence fails to establish that the Veteran's bilateral hearing loss is etiologically related to his active service, to include in-service noise exposure. Sensorineural hearing loss was not shown within 1 year following separation from service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in or aggravated by service, and sensorineural hearing loss may not be presumed to have been incurred in-service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1970 to August 1972. In October 2019, the Board remanded the appeal for evidentiary development. It has since been returned to the Board for further consideration. REFERRED The issue of entitlement to service connection for tinnitus has been raised by the record and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including sensorineural hearing loss, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in-service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for bilateral hearing loss The Board observes that the Veteran's DD-214 lists his military occupational specialty as a storekeeper. The Veteran contends that his hearing loss had its onset during service or is otherwise related to his service. For the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores utilizing the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran received a VA audiological examination in June 2015. The examiner found that the Veteran had bilateral sensorineural hearing loss with speech recognition scores of 69 percent in the right ear and 68 percent in the left ear and determined that no medical opinion regarding the etiology of the Veteran's hearing loss could be provided without resorting to speculation. The examiner noted that the only hearing evaluation in the Veteran's records, obtained in 1969 during the enlistment examination, showed results within normal limits. Furthermore, the examiner determined the Veteran was exposed to high levels of noise from the C141 jet engines without hearing protection which could have contributed to the Veteran's hearing loss but that it would have been speculative to say how much the exposure contributed to the Veteran's current hearing impairment. Pursuant to the Board's October 2019 remand, the Veteran received another VA audiological examination in January 2020, wherein a diagnosis of bilateral hearing loss for VA purposes was confirmed. The examiner concluded that the Veteran's claimed hearing loss is less likely than not attributable to service. The examiner provided the following remarks: STRs and Separation Exam are silent for hearing loss. This service members hearing exam on entrance to the military 8/11/1969 indicated normal hearing sensitivity. His hearing exam in July 1970 again indicated no hearing impairment. No hearing exam was found in the records for separation July 31, 1972. Veteran reports onset of hearing decrease as in the 1990's, 20+ years post-separation after exposure to recreational and/or occupational noise. 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. There is no evidence to support a nexus to relate current hearing loss to military noise & not another etiology. Therefore, it is less likely as not that the current hearing loss is related to military noise exposure. Here, the Board acknowledges that the Veteran currently has bilateral hearing loss, as defined by 38 C.F.R. § 3.385. The Board will also concede some in-service noise exposure. A preponderance of the evidence shows, however, that the Veteran's bilateral hearing loss is not related to service. The Board finds the January 2020 VA examiner's reasoning highly probative as she indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran's claims regarding in-service noise exposure. Particularly, the examiner pointed to certain post-service noise exposure and emphasized that the hearing loss did not onset until many years after discharge from service. Although the Veteran asserts that his hearing loss was caused by service, diagnosing the etiology of a complex disorder such as sensorineural hearing loss is outside the scope of a lay person's competence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran is competent to report symptoms such as difficulty hearing, his lay assertions offer little support for the claim. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). (Continued on the next page) The Veteran was discharged from service in 1972 and his hearing thresholds were essentially normal prior to that time. Importantly, there are no medical records indicating any hearing problems until many years after service. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that the lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the fact that the Veteran did not submit a claim for service connection for hearing loss until 2015, over 40 years after separation from service, may be considered as a factor in resolving the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999). There is otherwise no evidence indicating compensable hearing loss within one year of separation from service, nor is there evidence, aside from the Veteran's assertions and the fact that there are no medical records documenting complaints of hearing problems until long after service, of a continuity of symptomatology since service. 38 C.F.R. §§ 3.307, 3.309. Therefore, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.