Citation Nr: 21066400 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-56 983 DATE: October 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss either began during service, within one year of separation from service, or was otherwise caused by his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1971 to July 1974 with service during the Vietnam Era. This matter is before the Board of Veterans' Appeal (Board) on appeal from a September 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in May 2021. A transcript of the hearing is in the Veteran's file. In a July 2021 decision, the Board granted service connection for tinnitus and remanded the issue of service connection for bilateral hearing loss for further development. That development having been completed (namely obtaining an adequate opinion as to whether the Veteran's hearing loss is related to his active service), the Board finds substantial compliance with its remand instructions. Entitlement to service connection for bilateral hearing loss. 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; 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). 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. 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 disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hearing loss (as an organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for bilateral hearing loss. The Veteran asserts that while he was in the military, he was in Combat Arms Artillery. He fired missile shots without any hearing protection. He also had small arms practice without hearing protection. The Veteran asserts that this loud noise exposure in service caused his current hearing loss. See May 2017 VA 41-4138 Statement in Support of Claim, September 2017 VA 21-4138 Statement in Support of Claim, and May 2021 Hearing Transcript. The Veteran's DD 214 shows that his duty military occupational specialty (MOS) involved missiles and artillery. This is consistent with the Veteran's stated exposure to loud noises while in service. Thus, the Board concedes the Veteran's exposure to loud noise. What still must be shown is competent medical evidence linking his current hearing loss disability to the hazardous noise exposure that occurred in service. Nevertheless, for the reasons set forth below, the Board concludes that the preponderance of the evidence is against the claim; therefore, it must be denied. A review of the records shows that the Veteran's service treatment records are silent for any diagnosis, treatment for, signs, or symptoms of bilateral hearing loss. The Veteran was not diagnosed with bilateral hearing loss on his June 1971 Report of Medical Examination for entrance or May 1973 Report of Medical Examination for HRP clearance. Clinical records show that the Veteran was in a Hearing Conservation Program but was not diagnosed with hearing loss. Post service treatment records shows that it was not until November 2016 that the Veteran was diagnosed with bilateral hearing loss, which was many years after separation service from service. Service connection on a presumptive basis or under the theory of continuity of symptomatology is not warranted. The Board acknowledges that the Veteran is competent to report symptoms of hearing loss. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's service treatment records show that he did not complain of hearing loss or was diagnosed with hearing loss while in service. Further, the Veteran was not diagnosed with hearing loss until many years after separation from service. Therefore, service connection is not warranted on a presumptive basis or under the theory of continuity of symptomatology. 38 C.F.R. §§ 3.307, 3.309. As for whether the Veteran's bilateral hearing loss is etiologically related to his loud noise exposure during his military service, the Board finds that it is not. In June 2017, the Veteran was afforded a VA examination for his hearing loss. The Veteran was diagnosed with bilateral hearing loss. The VA examiner opined that it was less likely than not that the Veteran's hearing loss was due to military noise exposure. The Veteran's entrance and separation audiograms were reviewed, and the results indicated that the hearing thresholds were within normal limits at each frequency tested after the military noise exposure stopped. In July 2021, the Board remanded the issue of bilateral hearing loss for a new medical opinion because it found the June 2017 VA medical opinion to be inadequate because it was based solely on the absence of hearing loss during the Veteran's entrance and separation audiograms. In September 2021, the Veteran was afforded a VA examination for hearing loss. The Veteran was diagnosed with bilateral hearing loss. The VA examiner opined that it was not at least as likely as not that the Veteran's bilateral hearing loss was caused by or a result of military service. The Veteran reported exposure to loud noises without hearing protection during service with a military occupational specialty of missile assembly with unknown noise probability. The Veteran otherwise reported noise exposure pre- and post-service from farming without hearing protection. In the requested opinion, the examiner stated that noise had a cumulative effect on the inner ear causing more hearing loss with greater exposure. Damage to the ears as a result of hazardous noise was measurable on an audiogram when the hazardous noise stopped. In the case of military noise exposure, the separation audiogram measured the cumulative amount of cochlear damage caused in service. Entrance and separation audiograms were reviewed from the Veteran's claims file. The results indicated that hearing thresholds were within normal limits at each frequency tested at separation after the military related noise exposure stopped. Despite a significant threshold shift at 2000 Hertz in the right ear only, all frequencies were within normal limits. Damage attributed to the hazardous noise reported were measured and found to have not impacted the Veteran's hearing at the point of separation from the military. Any measurable hearing loss after the audiogram at separation was not a result of military noise. Other conditions that contributed to hearing loss after service included genetics, aging, cardiovascular conditions, and side effects from medication in addition to numerous other known causes. Based on all of this, the examiner concluded that it was less likely than not that the hearing loss measured on the examination was a result of military noise exposure. The Board finds the September 2021 VA examination to be adequate and probative in value because the VA examiner supported his conclusion with a sufficient rationale and considered the Veteran's in-service loud noise exposure. The Board makes no finding as to the credibility or competency of the Veteran regarding the question of whether his hearing loss is related to service. Instead, the Board finds any such statements regarding a nexus to be outweighed by the adequate and probative opinion from September 2021. (Continued on next page) In sum, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss began during service, within one year of separation from service, or was otherwise etiologically related to his active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Accordingly, the appeal seeking service connection for bilateral hearing loss must be denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.