Citation Nr: 21067160 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-47 643 DATE: November 3, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The probative evidence of record does not demonstrate that the Veteran's hearing loss manifested within one year of separation, or is etiologically related to service, to include on the basis of continuity of symptomology. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1131, 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 Air Force from August 1961 to September 1969. The Veteran also had service in the United States Air Force Reserves. This matter is on appeal from a January 2018 rating decision. The claims were remanded by the Board of Veterans' Appeals (Board) in March 2019 and November 2020. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that his current bilateral hearing loss is related to his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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 Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran underwent a VA audiological examination in November 2017. The VA audiological examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 35 45 60 LEFT 30 30 40 55 55 Maryland CNC speech recognition testing was 84 percent for the right ear and 88 percent for the left ear. The examiner opined that the Veteran's hearing loss was less likely than not a result of military noise exposure. The examiner noted that the Veteran's March 1964 entrance hearing examination was within normal limits, and his June 1970 separation hearing examination was also within normal limits. The examiner concluded that based on the Veteran's normal hearing acuity at the time of his separation from active service, it is less likely than not that the Veteran's bilateral hearing loss was caused by or a result of an event in military service. In a November 2019 addendum medical opinion, the examiner opined that it was less likely than not that the Veteran's hearing loss began during, or was otherwise related to his active service, to include as a result of military noise exposure. The examiner stated that the Veteran's entrance hearing examination and separation examination were within normal limits bilaterally. The examiner further noted that the Veteran's service treatment records do not have any complaints of hearing loss, either temporary or chronic. The examiner concluded that based on the Veteran's normal hearing acuity at the time of his separation from active service and no complaints of a change in hearing during his active service, it was less likely than not that the Veteran's hearing loss began in military service bilaterally. The Veteran had another audiological examination in March 2021. The VA audiological examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 55 60 LEFT 40 45 55 60 55 Maryland CNC speech recognition testing was 96 percent in the right ear and 100 percent in the left ear. The examiner opined that the Veteran's hearing loss was less likely than not a result of military noise exposure. The examiner noted that the Veteran reported difficulty hearing others clearly and that he was exposed to significant noise while deployed to Vietnam. Additionally, the examiner noted that the Veteran worked in the construction industry post-separation. The examiner stated that the Veteran's service treatment records and his separation examination were silent for hearing loss. The examiner noted that the Veteran reported onset of hearing decrease as 20 years post-separation after exposure to occupational noise. The examiner acknowledged that although noise exposure is conceded and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone. The examiner indicated that there is no evidence to support a nexus to relate current hearing loss to military noise and not another etiology. The Board finds the probative evidence of record is against finding that the Veteran's current bilateral hearing loss is related to his in-service noise exposure. The Board finds the March 2021 opinion to probative, as it was based on the pertinent evidence and provided an adequate rationale for its conclusions that is supported by the record. Furthermore, there is no medical evidence that contradicts the March 2021 examiner's opinion. Additionally, although lay persons are competent to report symptoms or other matters within their personal knowledge, and to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), here, the specific matters of the etiology of a bilateral hearing loss disability are complex medical matters that fall outside the realm of common knowledge of a lay person. See Clayburn v. West, 12 Vet. App. 488, 496-97 (1997) (holding that a veteran is not competent to relate currently diagnosed joint disease to the continuous post-service back injury). In this regard, such an opinion requires specialized medical knowledge. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of a bilateral hearing loss disability. As noted above, in some circumstances, certain diseases will be presumed to be related to service without a medical opinion, if other conditions are met chiefly that there is a diagnosis of the disease in question within one year of separation from service. In this case, while sensorineural hearing loss is considered a chronic disease subject to presumptive service connection, there is no evidence of a diagnosis within one year of the Veteran's 1969 separation. Without evidence of a diagnosis within one year of separation, presumptive service connection is not warranted. Based on the foregoing, the Board finds that service connection for a bilateral hearing loss disability is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the finding that there is a causal relationship between the Veteran's bilateral hearing loss and his active military service. As such, service connection for a bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.