Citation Nr: 21065785 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-25 175 DATE: October 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran is not currently shown to have a bilateral hearing loss by VA standards. CONCLUSION OF LAW Bilateral hearing loss was not incurred in the Veteran's active military service, and it may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from March 1988 to July 1994 with Army National Guard of Kentucky and US Army Reserves. He had active duty training in June 5, 1989 to August 10, 1989, and numerous other periods of active duty for training and inactive duty for training. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. In May 2021, the Board remanded this issue for additional development. Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as sensorineural hearing loss is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). 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 Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that he has current bilateral hearing loss that is related to noise exposure in service. He testified at his hearing that he was attached to a heavy artillery unit and was always positioned behind the guns. Notably, the Veteran has been granted service connection for tinnitus as his military noise exposure has been conceded. The Veteran's service treatment records are negative for complaints of, treatment for, or findings of bilateral hearing loss. Notably, a January 1988 audiological examination revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 10 0 LEFT 10 5 5 20 30 A May 1992 audiological examination revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 5 -5 -5 LEFT 20 15 5 -5 0 The Veteran underwent a VA examination in January 2017. Audiometric testing in January 2017 revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 25 LEFT 5 5 0 10 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The examiner opined that it was less likely than not that the Veteran had a current hearing loss disability that was caused by or a result of his military service as the Veteran's hearing thresholds were currently within normal limits. Per the May 2021 Board remand instructions, the Veteran underwent a VA examination in August 2021. Audiometric testing in August 2021 revealed pure tone thresholds, obtained by air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 20 25 LEFT 10 5 5 15 15 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner found that the use of the word discrimination score was appropriate for the Veteran. The examiner noted that no hearing loss etiology opinion for right and left ear hearing loss was provided as the Veteran's bilateral hearing was within normal limits. Considering the claim for service connection for bilateral hearing loss, in light of the record and the governing legal authority, the Board finds that the claim must be denied. The Veteran contends that he has hearing loss a result of his service and as reflected above, the Board notes that the Veteran has been granted service connection for tinnitus based on this conceded in-service noise exposure. However, the post-service evidence demonstrates that the Veteran does not have a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385, as the auditory thresholds obtained during the pendency of this claim were not 40 decibels or greater at any of the frequencies, the auditory thresholds at the minimum three of the frequencies were not 26 decibels or greater, and the Maryland CNC speech recognition score was not less than 94 percent. See 38 C.F.R. § 3.385. Notably, the VA examinations in January 2017 and August 2021 do not show a bilateral hearing loss disability by VA standards. While the Veteran's representative at the March 2021 hearing indicated that an audiogram was going to be submitted which demonstrated hearing loss for disability purposes, no subsequent audiograms were submitted despite the record remaining open for an additional 30 days after the March 2021 hearing. Thus, there is no competent evidence reflective of a hearing loss disability as defined by 38 C.F.R. § 3.385 at any time during the pendency of this appeal. The Board appreciates the Veteran's contentions and statements related to his claimed bilateral hearing loss. However, even conceding that the Veteran was exposed to significant noise in service, the evidence does not show a bilateral hearing loss disability by VA standards. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Thus, where, as here, competent and persuasive medical evidence establishes that the Veteran does not have a bilateral hearing loss disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the claim for service connection for bilateral hearing loss must be denied because the first essential criterion for a grant of service connection-competent evidence of the currently claimed disability-has not been met. With respect to the Veteran's contention that he currently has a bilateral hearing loss disability, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). As a layperson, the Veteran is competent to report that he experiences difficulty hearing. However, he is not competent to render a diagnosis of a bilateral hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385. Absent evidence of a current bilateral ear hearing loss disability diagnosis, the Board concludes that the claim of entitlement to service connection for a bilateral hearing loss disability must be denied. The Board notes the Veteran's contentions regarding the etiology of his claimed bilateral hearing loss disability. To the extent that the Veteran himself contends that a medical relationship exists between his claimed bilateral hearing loss disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a bilateral hearing loss disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed bilateral hearing loss etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiners provided detailed rationale in support of their opinions and cited to the relevant evidence. For this reason, the VA examiners' opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.