Citation Nr: 21067292 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 09-15 245A DATE: November 3, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1975 to June 1979. The Veteran provided sworn testimony at a hearing before the undersigned Veterans Law Judge in October 2018. This claim was remanded by the Board in September 2012, October 2015, April 2019 and March 2021 decisions for additional development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Further, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. See Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss that is related to his active duty service. He specifically maintains that his bilateral hearing loss is the result of acoustic trauma he was exposed to during service; his MOS was Motor Transport, and he spent his years in active duty driving M44A2 series trucks. The Veteran's MOS is considered moderate probability for hazardous noise exposure. Thus, the Board finds that the Veteran was exposed to in-service acoustic trauma. The Veteran's service treatment records do not show a hearing loss disability in either ear as defined by 38 C.F.R. § 3.385. There is no specific evidence of hearing loss within the year after service as required for the presumption of service connection. Certain chronic disabilities, such as hearing loss and tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For VA compensation purposes, hearing loss 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. See 38 C.F.R. § 3.385. In November 2020, the Veteran was granted service connection for tinnitus, which was related to his military service. Generally, the Board will find the Veteran's lay evidence credible in establishing the requisite element of a service connection claim. However, the Board is able to find, as it did in this case, "the inconsistency between lay statements and the other evidence of record was so great as to render the Veteran not credible on the whole, as opposed to not credible as to a particular issue." In this case, the Board found that the record contains inconsistencies regarding the onset of the Veteran's claimed hearing loss. In March 2021, the Board specifically noted three separate VA examinations for hearing loss in which the Veteran's veracity was called into question. In September 2011, a VA examiner noted that the Veteran's responses were inconsistent and thus unreliable, not providing an accurate representation of the current hearing sensitivity. In April 2017, a new examiner found the Veteran's "word recognition scores are markedly poorer than expected based on the pure-tone audiogram." The examiner suggested an additional audiogram at another facility. Finally, in February 2018, a VA examiner stated that they could not give an opinion about hearing loss or tinnitus without resorting to speculation because the Veteran was not being truthful about his hearing and speech levels and understanding. The matter was remanded for another VA examination to determine if the Veteran has a current hearing loss disability and, if so, whether that disability is connected to service. See April 2019 BVA Decision. Post remand, the Veteran was provided a VA Hearing Loss and Tinnitus Examination in February 2020. The test results from this examination were found to be invalid for rating purposes and not indicative of organic hearing loss due to poor reliability. The Veteran provided in support of his claim, lay statements and a technical manual for the M44A2 series trucks he operated while on active duty. The technical manual indicated that hearing protection is required for the operation of the vehicle when the engine is running; noise levels produced by the vehicle exceed 85 dB and long-term exposure to this noise causes hearing loss. See May 2018 Correspondence. The Veteran stated he drove these vehicles while on active duty without hearing protection. See July 2020 Correspondence. The Veteran also submitted a buddy statement on his behalf, in which the buddy stated she has observed Veteran complaining of his hearing loss, ringing in his ears, and hypertension symptoms for years and has seen him go back and forth to the doctor for these problems. See November 2019 Buddy Statement. The Veteran was afforded an additional VA examination for hearing loss in November 2020. The examination results revealed that the Veteran had bilateral hearing loss for VA compensation purposes. The VA examiner in the medical opinion opined that Veteran's bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of military service. The examiner's rationale for the negative nexus opinion was, upon a review of the medical record, despite conceding exposure to hazardous noise, the Veteran's entrance and separation examinations indicated his hearing sensitivity was within normal limits. The Board in its March 2021 decision remanded the matter for further development in assessing the etiology of Veteran's hearing loss disability before adjudication. See March 2021 BVA Decision. The Veteran submitted an additional buddy statement in May 2021 in which the buddy stated he has known Veteran for twenty years and Veteran has always complained he could not sleep at night because of ringing in his ears and he also could not hear well, having to "call his name two or three times before he could hear." See May 2021 Buddy Statement. In support, the Veteran's latest VA examination confirms his current hearing disability for VA purposes. See July 2021 VA Examination. Additionally, VA acknowledges that the Veteran was exposed to acoustic trauma in service. However, the examiner also noted that audiograms in service treatment records revealed normal hearing thresholds for each ear from 1975-1990. The VA examiner referenced a consensus report from the Institute of Medicine, titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus" released in September 2005, to note that hearing loss from noise injuries occur immediately following exposure based on the current understanding of auditory physiology. There was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. Therefore, the VA examiner opined that it is less likely than not that the current hearing loss is related to military noise exposure. See July 2021 C&P Exam. Upon review of the entire medical record, considering the Veteran's MOS, correspondence regarding the vehicles driven during active duty and the potential for hazardous noise exposure, and the Veteran's VA examinations for hearing loss, the Board finds that there is no competent evidence of a medical link between Veteran's hearing loss and his active duty service and there is also no competent evidence that hearing loss manifested itself to a compensable degree within a year of release from service and has been recurrent since. The Veteran has asserted that his bilateral hearing loss is related to service. However, while the Veteran is competent to report symptoms of hearing problems, he is not competent to relate his current bilateral hearing loss to acoustic trauma in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). In the Veteran's case, such a nexus opinion requires a certain level of expertise given the medically complex questions. Lay opinions are not sufficient in this case to prove nexus. Here, the Veteran meets the hearing loss criteria for VA purposes. Additionally, the only evidence pertaining to a nexus between the Veteran's claimed disability and service is his assertion that the disability is directly related to service. However, the record does not show that the onset of his hearing loss was in service or that it manifested to a compensable degree within one year of discharge from service. Overall, the evidence does not indicate that it is at least as likely as not that the claimed disability is related to service. (Continued on the next page) In light of the foregoing, because the preponderance of the evidence is against the claim there is no doubt to be resolved. Thus, service connection for bilateral hearing loss is not warranted. As such, service connection for bilateral hearing loss must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.