Citation Nr: 21065838 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-39 744 DATE: October 27, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's hearing loss is the result of his conceded in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 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 Army from December 1968 to December 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran has contended that his hearing loss is the result of his active service, to include exposure to military noise. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. at 159. Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Turning to the evidence of record, the Veteran's December 1968 service entrance examination included an audiogram which revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT +15 -5 -5 X 0 LEFT +15 +5 0 X +5 In a report of medical history, the Veteran denied hearing loss and ear trouble. During his active service, he served in light weapons infantry, earning the Combat Infantryman's Badge for his service in Vietnam. At separation, both a whisper test (15/15) and an audiogram reflected normal hearing acuity: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 X 0 LEFT 0 0 0 X 0 In a separation report of medical history, the Veteran denied hearing loss and ear trouble. Post-service, the Veteran underwent a private audiogram which demonstrated hearing loss for VA purposes in his right ear and hearing loss in the left ear not meeting VA thresholds. A VA audiological examination was conducted in May 2018. The Veteran described his in-service noise exposure as gunfire, artillery, helicopters, jet engine noise, and mortar explosions during combat. He state that he first noticed his hearing loss approximately 10 years previously. Currently, he had to pay close attention to speakers as it took more of an effort to hear. His wife complained about his hearing and about how loud the television was. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 30 55 50 LEFT 5 15 25 25 20 Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner noted that hearing thresholds were within normal limits at service entrance and separation with no significant threshold shift. The Veteran's military occupational specialty and credible testimony of noise exposure supported his conceded noise exposure. However, despite the conceded exposure, when considering the normal entrance and separation examinations and the Veteran's own report of late-onset hearing loss, a nexus between military noise and current hearing loss could not be established. As such, hearing loss was less likely than not the result of active service. At the July 2021 hearing, the Veteran testified that he could not precisely determine when his hearing loss began, but he did not notice it during active service and believed it came on gradually over the years. His wife, whom he met after discharge, did not observe noticeable hearing loss at the time. The Veteran noted that he had no post-service occupational noise exposure and only recreational exposure of using power tools. He confirmed that his exposure in service was greater than any exposure post-service. In August 2021, the Veteran submitted several medical articles regarding the causes of noise-induced hearing loss. Service connection for bilateral hearing loss is denied. The Board notes at the outset that the Veteran's experience in combat, supported by his credible testimony regarding noise exposure, establishes the presumption that he was exposed to military noise. 38 U.S.C. § 1154(b); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). The private evaluation and VA examination demonstrated that he has current hearing loss for VA purposes in his right ear. Left ear hearing loss does not meet the threshold for VA benefits. As such, service connection for left ear hearing loss is not warranted. Accordingly, the Board will consider whether service connection for right ear hearing loss is merited. The Board finds that service connection for right ear hearing loss is not warranted. There is no evidence of hearing loss during service, with no significant shift in hearing acuity. Further, the Veteran himself reported an approximate onset of hearing difficulty nearly 40 years after service discharge when he was in his sixties. Given the lack of in-service complaints and the large gap between service and the first reported onset of hearing complaints, the VA examiner determined that it was less likely than not that the Veteran's current hearing loss was due to service. The Board attaches significant probative weight to the examiner's opinion as it is well-reasoned, consistent with other evidence of record, and included consideration of the Veteran's pertinent medical history and lay statements. In contrast, the medical articles submitted by the Veteran merely discuss the causes and effects of noise-induced hearing loss. A medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). Articles and treatises tend to be general in nature and to not relate to the specific facts in a given veteran's claim. In the present case, the articles submitted by the Veteran fall into this general category. Further, the articles are not combined with an opinion of a medical professional. Therefore, it represents less probative evidence as pertains to the Veteran's claim. The Board acknowledges the Veteran's belief that his hearing loss is the result of his active service. He is competent to describe his experience of decreasing hearing acuity. However, he has not described experiencing hearing loss in service or continuing to the present, either contemporaneously at separation or since. As such, the Board attaches more probative value to the medical evidence in the claims file depicting hearing within normal limits during active service and the onset of relevant symptomology many years after separation. The Board further affords more probative weight to the VA examiner's opinion which is supported by an adequate rationale. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's currently-diagnosed right ear hearing loss is the result of his conceded exposure to military noise. Therefore, service connection for bilateral hearing loss is not warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, Associate 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.