Citation Nr: 21069287 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-14 277 DATE: November 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT 1. The Veteran's bilateral hearing loss is not shown by the most probative evidence to have originated during his military service or for many years after the conclusion of his service or to otherwise be related or attributable to his service. CONCLUSION OF LAW 1. The Veteran's bilateral hearing loss was not incurred in service, and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1982 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an August 2021 Board hearing before the undersigned Veterans Law Judge. The claim was remanded by the Board in August 2021. Service Connection 1. Entitlement to service connection for bilateral hearing loss is denied. For the reasons fully discussed below, entitlement to service connection for bilateral hearing loss is denied. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, an appellant must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (2009); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). (1) Current Disability The determination of whether the Veteran currently has a hearing loss disability is governed by 38 C.F.R. § 3.385. Here, during the appeal period, the Veteran was diagnosed with sensorineural hearing loss in both ears as defined by VA regulations in a September 2021 VA examination report. See September 2021 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). Therefore, the current disability requirement is met. (2) In-service Injury Next, the Veteran reports that he first noticed hearing loss during service. See id. The Veteran is competent and credible to report symptoms of his bilateral hearing loss, as they come through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, as stated in the September 2021 Statement of the Case, the Veteran's in-service noise exposure is conceded. Therefore, the second element is also met. (3) Nexus Unfortunately, even though more than one theory of entitlement was considered, the Board finds that the third element of service connection, the nexus, is not met. For the following reasons, there is no nexus based on either a presumptive or direct basis. i) Presumptive Service Connection For chronic conditions listed in 38 C.F.R. § 3.309 (a), service connection may be established on a presumptive basis through a showing of chronicity. Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Chronicity is established if the evidence demonstrates the existence of a chronic disease in service and present manifestations of that same in-service disease. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). As an initial matter, sensorineural hearing loss is a condition that is considered chronic, and therefore, will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10 percent disabling) within one year after discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system subject to § 3.309(a)). This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Here, the August 1986 audiogram results at the time of the Veteran's separation from service, reflect that his hearing thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz was, at its highest, 25 decibels (ANSI). Based on VA regulations, this evidence tends to show that the Veteran did not have hearing loss in active service. See 38 C.F.R.§ 3.385. In fact, the record reflects that the Veteran was diagnosed with sensorineural hearing loss decades after his separation from service in a September 2021VA examination report. See September 2021 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). No other competent evidence of record demonstrates otherwise. Thus, based on the record, there is no indication that the Veteran had hearing loss during service or eleven months after. See also 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). Thus, chronicity of the bilateral hearing loss since service is not established. ii) Direct Service Connection The Veteran is not entitled to service connection for bilateral hearing loss on a direct basis. 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). In Hensley, the United States Court of Appeals for Veterans Claims held that "when 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 (1994). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, no medical professional has related the Veteran's current hearing loss to his active duty service. Instead, the record contains a September 2021 VA medical opinion that states it is less likely than not that the Veteran's bilateral hearing loss was incurred in or caused by his service. The Board finds this opinion persuasive because it is based on a review of the claims file and the Veteran's lay statements, and is supported by a medical explanation that is consistent with the record and cited medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). Given that there is no evidence the examiner was not competent or credible, and as the opinion is based on a thorough review of the file, the Board finds this opinion entitled to probative weight. The Board acknowledges the Veteran's contention that his current bilateral hearing loss was caused by his in-service military noise exposure. However, while lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the Board finds the specific issue here, the etiology of sensorineural hearing loss, particularly as it was diagnosed decades after active service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The record does not demonstrate that the Veteran has special training or acquired any medical expertise in evaluating sensorineural hearing loss. See King v. Shinseki, 700 F.3d 1339, 1345 (2012). Alternatively, a nexus can also be established by continuity of symptomatology for chronic conditions listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Continuity of symptomatology is established if (1) a chronic condition was "noted" during service, (2) there are post-service manifestations of the same symptomatology, and (3) medical or, sometimes, lay evidence shows a nexus between the present disability and post-service symptomatology. Id. A condition is "noted" in service where evidence is "indicative of but not dispositive of a chronic disease." Walker, 708 F.3d at 1340. The determination of whether the Veteran currently has a hearing loss disability for VA benefits purposes is governed by 38 C.F.R. § 3.385. Under VA law, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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. Pure tone thresholds above 20 decibels indicate some hearing loss, irrespective of whether it is severe enough to qualify as a disability for VA compensation purposes. See Hensley v. Brown, 5 Vet. App. 155 (1993); see also McKinney v. McDonald, 28 Vet. App. 15, 23-24 (2016) (finding that pre-existing hearing loss is "noted" upon entry into service if the entrance auditory examination shows hearing loss that rises to the level of a disability under VA law). Here, the record shows no evidence of the Veteran having sensorineural hearing loss as defined by VA regulations until September 2021, many decades after he left service. See September 2021 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The Board does note that the Veteran had hearing loss prior to this based on his receipt of hearing aid in 2017. However, even in 2017, it is more than 30 years after service. In addition, sensorineural hearing loss was not noted in service, where there is no evidence indicative of hearing loss in service. In fact, upon separation the Veteran's separation examination reflects that the Veteran did not have hearing loss as defined by VA regulations. Indeed, there is no evidence until over several decades that the Veteran had actual hearing loss as defined by VA regulations. Moreover, while the Board does not doubt the sincerity of the Veteran's current belief that his symptoms of hearing loss have been present since his years in service, the evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections. For instance, the Veteran reported to the September 2021 examiner that his hearing loss occurred shortly after he separated from service. On the other hand, in October 2017, when receiving hearing aids, the Veteran reported that his hearing loss started at age 18, which would have been from September 1982 to September 1983, essentially around the time that he first joined the military and a year later. Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports the onset of his hearing loss. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." Given the aforementioned, the Board does not find that continuity of symptomatology has been established, without evidence of symptoms of hearing loss from the time the Veteran separated from service. Based on the foregoing, the preponderance of the evidence weighs against a finding that the Veteran's current bilateral sensorineural hearing loss as defined by VA regulations is related to his service. In reaching this conclusion, the Board considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. 38 U.S.C. § 5170 (b); 38 C.F.R. § 3.102 (2016); Ortiz v. Principi, 274 F.3d 1361, 1364 (2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.