Citation Nr: 21067707 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-50 343 DATE: November 5, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is not etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1969 to February 1972, followed by service in the United States Army Reserve. This case was previously before the Board of Veterans' Appeals (Board) in March 2021. At that time, the Board remanded the Veteran's claim for further development. Service Connection Bilateral Hearing Loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes sensorineural hearing loss, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) 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. Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. 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). As an initial matter, the evidence establishes the Veteran has a current diagnosis of bilateral sensorineural hearing loss, as indicated in his May 2017 VA hearing loss examination. Therefore, the merits of this claim turn on whether the currently diagnosed hearing loss is attributable to the Veteran's military service pursuant to any theory of entitlement. A. Presumptive Service Connection The Veteran's service treatment records (STRs) are silent for any diagnoses of, complaints of, or treatment for hearing loss. Following separation from service in 1972, the first treatment record noting any indication of hearing loss is not until June 1981, when a reservist medical examination revealed right ear hearing loss at 6000 Hz only, and normal left ear hearing. However, such audiometric testing results do not meet the criteria for hearing loss for VA purposes. Thus, based on the record, there is no indication that the Veteran had hearing loss during service or within a year of his separation. The nearly nine years of time after service before the Veteran presented with any indication of a decrease in hearing acuity in either ear is significant, and the Board finds that it weighs against the Veteran's claim to establish a claim based on a presumption. See Maxson v. Gober, 230 F.3d 1330 (2000) (finding that a prolonged period without medical complaint, and the amount of time that elapsed since service can be a factor for consideration in rebutting the presumption of service connection). In sum, based on the record, the Veteran's bilateral hearing loss did not manifest during, or within one year after his separation from, service, and the evidence of record does not establish that he has had continuous difficulty hearing since he separated from service. He is, therefore, not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. However, the failure to establish a presumptive basis of service connection with regard to this disability does not preclude the Veteran from establishing service connection on another basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 U.S.C. § 1113(b). Instead, the Veteran may establish direct service connection to the current disability. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (holding that the Veteran may submit evidence that the disability is causally related to service). B. Direct Service Connection Here, while the evidence of record notes complaints of bilateral hearing loss and even provides a diagnosis of this disorder, at no point do the treating physicians provide an etiological opinion attributing the Veteran's hearing loss to his active service. As previously mentioned, the Veteran was afforded a VA hearing loss examination in May 2017. However, the examiner was unable to locate the Veteran's entrance and separation audiogram data in his STRs and was, therefore, unable to proffer an adequate nexus opinion regarding the etiology of his bilateral hearing loss. As the Veteran's STRs did, in fact, contain his entrance and separation examinations with audiometric findings, the Board remanded this claim in March 2021 for a VA addendum opinion regarding the etiology of his bilateral hearing loss with consideration given to the audiometric data contained in his STRs. Such opinion was obtained in December 2019. The December 2019 VA examiner reviewed the Veteran's STRs, transcribed the audiometric data from his entrance and separation examinations, and opined against service connection for the Veteran's bilateral hearing loss. The examiner noted that, although the Veteran's military occupational specialty indicated a high probability that he was exposed to hazardous noise in service, a comparison of the audiograms from his May 1969 entrance and February 1972 separation examinations revealed no positive significant threshold shift in either ear. Further, both examinations showed that the Veteran's hearing was normal bilaterally when he entered service and when he separated from service. Thus, the record did not indicate that his current hearing loss onset during active service. Rather, the examiner noted that the medical evidence supported a finding that the Veteran's bilateral hearing loss onset many years after he separated from service, with the first audiometric data revealing a decrease in hearing being shown in his June 1982 reservist treatment records, as previously discussed. Moreover, the Veteran's bilateral hearing was normal for VA purposes as recently as December 5, 1972, as revealed in a reservist medical examination on that date. Further, the examiner discussed how, even considering the Veteran's in-service noise exposure during his period of active service from May 1969 to February 1972, such exposure would not cause his hearing to decline this many years after exposure. The examiner noted that the Institute of Medicine's 2006 study on delayed-onset hearing loss states that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. Thus, the examiner concluded that it was less likely than not (less than 50 percent probability) that the Veteran's hearing loss in either ear was caused by, or a result of, an event in service, to include exposure to hazardous noise. The Board has also reviewed the Veteran's post-service medical treatment records, but they do not contain any nexus opinions which support service connection for his bilateral hearing loss, nor has he identified any other medical evidence which would support such a finding. Based on the foregoing, the Board concludes that the evidence weighs against the claim for service connection for the Veteran's bilateral hearing loss. Between the May 2017 VA examination and December 2019 VA addendum opinion, the Veteran was afforded a comprehensive clinical examination and evidentiary review. The December 2019 VA examiner provided a thorough rationale supported by medical literature regarding the Veteran's current condition and offered an adverse opinion regarding the relationship between his active service and bilateral hearing loss. Also, as previously discussed, there are no conflicting medical opinions of record. Accordingly, entitlement to direct service connection for the Veteran's bilateral hearing loss is also not shown, as there is no medical nexus between his active service and his bilateral hearing loss. Furthermore, even though the Board acknowledges the Veteran's lay assertion noted in his June 2017 notice of disagreement that his service entrance and separation examinations showed that his hearing acuity changed in service due to his exposure to hazardous noise, the Board finds that he is not competent to attribute medically his bilateral sensorineural hearing loss to his in-service acoustic trauma, or to conclude the significance of a hearing shift. The Veteran is competent to report noise exposure in service, and he is competent to report difficulty hearing, but he is not competent as a layperson to opine regarding the etiology of a hearing disability that demonstrably became manifest many years after service. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In sum, the Board has found that the Veteran does not have bilateral hearing loss that was incurred in, due to, or aggravated by his active service. Accordingly, the criteria for service connection are not met, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.