Citation Nr: 21066436 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-31 529 DATE: November 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss is caused or aggravated by his service-connected otitis externa. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was last before the Board in May 2021 and has returned to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he asserts is related to his service-connected otitis externa. During the September 2019 Board hearing, the Veteran testified that he had hearing loss at the time of his discharge from service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If a pre-existing disorder is "noted" on entering service, in accordance with 38 U.S.C. § 1153, the veteran has the burden of showing an increase in disability during service. If the veteran meets that burden and shows that an increase in disability occurred, the burden then shifts to the government to show that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2020); Green v. Derwinski, 1 Vet. App. 320 (1991). "Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). As an initial matter, the Board finds that the Veteran has a hearing loss disability pursuant to 38 C.F.R. § 3.385, as shown by a January 2017 VA examination. Thus, the question becomes whether the Veteran's bilateral hearing loss was incurred in or aggravated by service or related to his service-connected otitis externa. With regard to the Veteran's right ear hearing loss disability, the Veteran's April 1966 Report of Medical Examination at induction reveals the Veteran had a right ear pure tone threshold of 50 decibels at 4000 Hertz. Thus, a right ear hearing loss disability was noted at the Veteran's entrance into service, and the presumption of soundness does not attach. See 38 C.F.R. §§ 3.306, 3.385. As the presumption of soundness is rebutted, the claim turns on whether the Veteran's pre-existing right ear hearing loss was aggravated during service. In this regard, service treatment records are absent complaints of or treatment for right ear hearing loss and the Veteran's February 1968 separation examination reveals he had normal hearing in the right ear. As such, the Board finds that the Veteran's right ear hearing loss was not aggravated by his military service. A September 1986 private treatment record shows the Veteran was diagnosed with bilateral hearing loss. The clinician noted that Veteran reported a history of fungus in his ears during service. The clinician also noted he had a sensorineural hearing loss bilaterally, right greater than left, but that there was no clear etiology for it. In January 2017, a VA examiner explained that the Veteran's service treatment records do not reveal evidence of noise induced hearing loss during service. As such, the examiner opined that the Veteran's hearing loss is less likely than not related to military noise exposure. The Veteran underwent a VA examination in May 2017, during which the examiner explained that the Veteran's pure tone threshold results indicate mild to severe sensorineural hearing loss, which is not consistent with hearing loss due to otitis externa. As such, the examiner opined that the Veteran's hearing loss was less likely than not due to or the result of his service-connected otitis externa. In March 2020, a VA examiner found that the Veteran's hearing was normal at enlistment with the exception of moderate loss in the right ear, and there was no progression of hearing loss, significant threshold shift, or auditory damage in service from otitis externa. The examiner also explained that the Veteran did not have a current diagnosis of otitis externa and that otitis externa rarely causes hearing loss. As such, the examiner concluded that the Veteran's current hearing loss is not consistent with hearing loss from otitis externa. In May 2021, a VA examiner opined that the Veteran's bilateral hearing loss is less likely than not aggravated beyond natural progression by his otitis externa. In support of his opinion, the examiner explained that the Veteran's sensorineural hearing loss is a type of hearing loss suggestive of a lesion of the inner ear or beyond, whereas otitis externa is a pathology of the outer ear. The examiner further explained that hearing loss is most commonly conductive in type when caused by pathologies of the outer or middle ear, and that all available audiograms are negative for documentation of or reference to conductive hearing loss. The Board acknowledges an October 2016 opinion from the Veteran's private physician that the reoccurrence of otitis externa is the direct cause of the Veteran's hearing loss. However, the Board finds the combined opinions of the VA examiners to be more probative, as the opinion from the Veteran's private physician is conclusory with no rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). To the extent the Veteran believes that his current hearing loss disability is related to service or to his service-connected otitis externa, as a lay person he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are matters not capable of lay observation and require medical testing and expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his hearing loss is not competent medical evidence. The Board finds the opinions of the VA examiners combined to be significantly more probative than the Veteran's lay assertions. In sum, the most probative evidence of record is against a finding that the Veteran's current left ear hearing loss disability is caused by service, that his right ear hearing loss disability was aggravated by service, or that his bilateral hearing loss disability was caused or aggravated by his service-connected otitis externa. Thus, the claim is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.