Citation Nr: 21065603 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-62 127 DATE: October 26, 2021 ORDER Entitlement to service connection bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1153; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1992 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ). In March 2021, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In May 2021, the appeal was remanded for further development, that development has been accomplished and the appeal is ready for adjudication. Of note, at that time, the issue of entitlement to service connection for allergic rhinitis was also remanded, that appeal was granted during development and the issue is no longer before the Board. Entitlement to Service Connection for Hearing Loss The Veteran contends that his hearing loss is due to or was worsened by his active-duty service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as sensorineural hearing loss, becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. 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, or 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. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability (1) existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); VAOPGCPREC 3-2003. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The evidence of record includes the Veteran's service treatment records which include a February 1992 report of physical examination dated in February 1992 which include a finding of hearing loss. The Veteran was afforded an examination in August 2016 however, as noted in a prior remand, that examination is found to be inadequate and its findings will not be considered. At the Veteran's March 2021 hearing testimony, the Veteran indicated that he believed he had hearing loss which was due to his service. In a July 2021 examination, the Veteran was found to have bilateral sensorineural hearing loss. The Veteran described in service noise exposure including exposure to needle guns, sanders, ship noise and basic training gunfire. The Veteran described current hearing trouble with hearing where there was background noise. Following audiology testing, an examiner found that the Veteran's hearing loss had clearly and unmistakably existed prior to service and was not aggravated beyond its normal progression during service. In so finding, the examiner explained that there was no significant permanent shift in hearing thresholds beyond test variability from the Veteran's entrance to separation which was objective evidence of no aggravation from conceded noise. The examiner further explained "[a]lthough noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate progression of hearing loss to military noise and not another etiology. The evidence is against a nexus in this case, therefore it is less likely that the right hearing loss was aggravated beyond normal progression." The Board concludes that, while the Veteran has a current diagnosis of hearing loss the evidence shows that the Veteran's hearing loss clearly and unmistakably existed before service and clearly and unmistakably was not aggravated thereby. While the Veteran may believe that his hearing loss is due to or was aggravated by service, in this case he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of 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 findings of the VA examiner that the Veteran's hearing loss preexisted service and was not aggravated by his service. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Slovick, 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.