Citation Nr: 21070693 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-28 792 DATE: November 24, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A bilateral hearing loss disability did not manifest in service or to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the Veteran's bilateral hearing loss is not otherwise etiologically related to in-service disease or injury. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 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 U.S. Air Force from February 1984 to September 1985. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in August 2021 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Service Connection Generally, to establish service connection a Veteran 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, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2003); 38 C.F.R. §§ 3.303(b), 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Entitlement to service connection for bilateral hearing loss A May 2016 VA audiological examination reflects that the Veteran has bilateral hearing loss considered to be disabling for VA purposes. 38 C.F.R. § 3.385. Concerning an in-service injury or disease, service treatment records include audiology findings. Audiology examinations from December 1983 induction and August 1985 separation showed normal hearing without threshold shift. Additional examinations in 1985 and 1987 also reflect normal hearing. The findings do not reflect a hearing loss disability for VA purposes on either examination. Id. However, the Veteran has alleged that she was exposed to loud noise during service, due to being by the flight line and including high pitched sounds as a radio operator in service. The Veteran is competent to report noise exposure, and there is no evidence these reports are not credible. As such, an in-service injury or disease in the form of noise exposure has been shown. However, the preponderance of the evidence is against a finding that the Veteran's hearing loss is causally related to her in-service noise exposure. While the Veteran is competent to report symptoms that are capable of lay observation and when those symptoms were first manifested, the Board finds that the Veteran is not competent to formulate an opinion on the etiology of her hearing loss. The etiology of delayed onset hearing loss is not susceptible to lay observation and is a complex medical matter that requires an understanding of the anatomy of the ear, hearing mechanisms, and disease processes. Jandreau, 492 F.3d at 1377 n.4. The Veteran was provided with an audiological examination in May 2016. The examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was etiologically related to service. The examiner's rationale noted normal hearing at the enlistment and separation exams (500-6000Hz) and there were no permanent significant in-service threshold shifts present in either ear. It is noted that the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). At her February 2021 Board hearing, the Veteran reported her current hearing loss disability was in effect delayed onset hearing loss due to her active-duty service. The Veteran also supplied a medical study to support her contentions. As the May 2016 examination did not address the Veteran's contentions or the study she submitted in support of her claim, another VA examination was obtained. Pursuant to the August 2021 Board remand, the Veteran received another VA examination in September 2021. The examiner provided a negative opinion. The examiner cited to the Institute of Medicine Study "Noise and Military Service: Implications for Hearing Loss and Tinnitus," which found that prolonged delay in the onset of noise-induced hearing loss in unlikely. The examiner cited to additional studies regarding delayed effects of noise exposure, provided a rationale as to why the medical study the Veteran provided was less probative, and concluded that the Veteran's hearing loss was less likely than not the result of noise exposure on active duty. Further, the examiner supported the opinion by citing directly to the audiometric testing results of record, as well as current medical studies concerning the onset of trauma induced hearing loss. The Board notes the representative's contention that the IOM study did not completely rule out the possibility of delayed onset hearing loss. McCray v. Wilkie, 31 Vet. App. 243, 25659 (2019). However, this does not diminish the probative value of the study, or of the examiner's opinion, as the examiner stated that the study concludes that current medical knowledge of trauma induced hearing loss shows that it is not reasonable to conclude that hearing loss may have a delayed onset following noise-related trauma. As such, the Board finds that the examination report is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the preponderance of the competent and credible evidence of record is against a finding that the Veteran's hearing loss is directly related to the Veteran's active service. The September 2021 negative VA opinion cited directly to both the evidence of record and current medical studies concerning the delayed onset of hearing loss following noise trauma. As there is no competent or credible evidence of a nexus, service connection on a direct basis is not warranted. 38 C.F.R. §§ 3.102, 3.303. The Board notes that sensorineural hearing loss is considered to be an organic disease of the nervous system, and therefore is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). However, the Veteran does not contend, and the evidence does not show, that her hearing loss first manifested in service or during the first post-service year. Further, post-service records do not reflect continued reports of hearing loss since separation. As such, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology are not warranted. 38 C.F.R. § 3.303(b), 3.309(a). The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board had determined a preponderance of the evidence weighs against the Veteran's claim. Accordingly, the claim for service connection for bilateral hearing loss is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.