Citation Nr: 21072571 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-29 329 DATE: December 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in July 2021, the Board denied the issue of entitlement to service connection for stroke, granted the issue of entitlement to service connection for tinnitus, and remanded the issue of entitlement to service connection for bilateral hearing loss. The issue of entitlement to service connection for bilateral hearing loss is once again before the Board. 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, 1315-16 (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, including that pertinent to service, 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, to include bilateral hearing loss, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Sensorineural hearing loss are considered organic diseases of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply to the claim for hearing loss. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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). 1. Entitlement to service connection for bilateral hearing loss is denied. At the outset, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss that meets the criteria of 38 C.F.R. § 3.385. See September 2021 VA Examination. As such, the first element of service connection is met. The Board also concedes that the Veteran was exposed to some degree of noise during active service. What remains for consideration is whether his current bilateral hearing loss is related to his in-service noise exposure. A review of service treatment records notes normal ears and drums with no complaints, symptoms, signs, or diagnoses of bilateral hearing loss. He affirmatively denied any ear or drum related trouble in the June 1966 enlistment examination and March 1969 separation examination. See November 2016 STR Medical. Post-service treatment records show that he did not report bilateral hearing loss until many years after his separation from service. In fact, even in a January 2013 VA treatment record, he explicitly denied having any hearing loss. See May 2018 CAPRI. However, as he had tinnitus, he was scheduled for a hearing evaluation. In a March 2013 audiology consultation, he reported that he has two years of military noise and more than 40 years of occupational noise working in construction with no hearing protection. The audiologist determined that he had normal hearing through 3000 Hertz (Hz) and only mild asymmetric hearing loss in the high frequencies. See February 2017 CAPRI. In a March 2016 private treatment record it was noted that his hearing was within functional limits. See September 2021 Medical Treatment Record Non-Government Facility. In the January 2017 VA examination, the examiner diagnosed the Veteran with bilateral hearing loss and opined that the Veteran's bilateral hearing loss is less likely as not caused by or a result of an event in service. The examiner explained that there was no significant changes or threshold shifts between the entrance and separation examination. Then, the examiner determined that his hearing loss preexisted service. In July 2021, the Board found that a remand was warranted as there was no evidence that the Veteran's bilateral hearing loss preexisted service and as such a new medical opinion was needed. In the September 2021 VA examination, the examiner diagnosed the Veteran with bilateral hearing loss and opined that his bilateral hearing loss is less likely as not caused by or a result of an event in service. The examiner explained that based on the noise that the Veteran was exposed to during service (small arms fire, rifle fire, machine gun fire, artillery fire, mortar, grenade launchers, rocket launchers, explosions, howitzers, heavy equipment, generator noise, helicopter noise, jet noise) it is probable that damage could have occurred to the inner ear system, however the pure tone air conduction test results obtained at the time he entered and separated from service revealed there was no significant change in hearing and hearing was within normal limits. The examiner further explained that it is probable that his bilateral hearing loss is most likely correlated to presbycusis and hazard noise exposure after service. As such, the examiner determined that the Veteran's bilateral hearing loss is less likely than not related to his military noise exposure. The Board acknowledges the Veteran's lay statement that military noise exposure caused his bilateral hearing loss. However, such an opinion of nexus requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). To the extent the Veteran reports that he has experienced hearing loss since service, the Board does not find his assertions persuasive, as they are inconsistent with the more probative evidence of record. As reflected above, he denied hearing loss upon his separation from service, and denied having hearing loss in January 2013. It is reasonable to conclude that if the Veteran had experienced hearing loss on a continual basis since service, that he would have reported such at some point, as opposed to expressing denying that he experienced such. Further, even the March 2013 audiologist noted that he had normal hearing through 3000 Hertz (Hz) and only a mild asymmetric hearing loss in the high frequencies more than 40 years since his exposure to hazardous noise in service and 40 years of occupational noise working in construction with no hearing protection. See February 2017 CAPRI. Accordingly, the Board does not find his reports that he has experienced hearing loss since service to be persuasive and they are afforded little probative value. As stated above, the Veteran's service treatment records show normal ears and drums in service, and his post-service records show no hearing loss until 2013, more than 40 years after service. Further, the Board finds the September 2021 VA examiner's conclusion persuasive and probative that the Veteran's bilateral hearing loss is less likely than not caused by or a result of his military noise exposure. The opinion is based on a review of his service treatment records and is supported by a rationale and clinical expertise. Thus, the Board finds there is no competent evidence of record to provide a nexus between the Veteran's bilateral hearing loss and service. (Continued on the next page) In conclusion, although the Veteran has established a current disability and in-service noise exposure, the preponderance of the evidence establishes that his bilateral hearing loss was not manifested during service or for many years thereafter and is not otherwise related to his active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.