Citation Nr: 21073258 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-00 557A DATE: December 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss did not have onset in active service, did not manifest within one year of separation from active service, and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1958 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's substantive appeal (VA Form 9), dated in January 2019, he requested a Board hearing in connection with his appeal. However, in a November 2021 correspondence, he canceled his hearing request. The Board will therefore proceed with adjudication. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including an organic disease of the nervous system like sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id. see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990) 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that service connection is warranted for a bilateral hearing loss, which he developed as a result of his exposure to acoustic trauma while serving in the military. Specifically, the Veteran maintains that, as a steward and motor pool person, he was exposed to constant and loud noises produced by the ship's tugboats and motor pool trucks. He also stated that they worked without any hearing protection. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing 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. 38 C.F.R. § 3.385. In this regard, the Board notes that the November 2017 VA audiological evaluation diagnosed the Veteran with bilateral sensorineural hearing loss consistent with 38 C.F.R. § 3.385. Thus, the requirement of a current disability has been fulfilled. As such, the dispositive issue is whether there is a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran's DD Form 214 indicates that his military occupational specialty was as a petroleum storage specialist; he was awarded the Marksman Medal. The Board finds it likely that he was exposed to loud noise during service. Significantly, the service treatment records show that the Veteran underwent audiometric testing in September 1958 and July 1961. Audiology testing standards were set by the American Standards Association (ASA) until November 1, 1967. After that date, audiometric tests were conducted using International Standards Organization (ISO) or American National Standards Institute (ANSI) measurement. However, as it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standards for evaluating hearing loss were not changed to require ISO-ANSI units until September 9, 1975. Current VA regulations that define hearing loss for VA purposes are based on the decibels measurement recorded in the ISO-ANSI units. 38 C.F.R. § 3.385. Accordingly, the VA uses a system to convert ASA units to ISO-ANSI units that adds 15 decibels to 500 Hertz, 10 decibels to 1000, 2000, and 3000 Hertz, and 5 dB to 4000 Hertz. At his enlistment examination in September 1958, audiometric examination revealed hearing acuity of 15/15 in both ears for whispered voice. However, an audiometric examination conducted at his separation examination in July 1961 revealed Puretone thresholds of -10 (5), -10(0), 0(10), 0(10), and -5(0) decibels in the right ear at the 500, 1000, 2000, and 4000 Hertz levels; in the left ear, Puretone thresholds were -5(10), -10(0), -10(0), -5(5), and 0(5) at the same Hertz levels. Thus, a review of the Veteran's enlistment and separation audiological examinations fails to establish the presence of a hearing loss disability under 38 C.F.R. § 3.385. Significantly, the first evidence of sensorineural hearing loss was not shown in service or within one year of service separation. In fact, the first objective clinical documentation of hearing loss is dated in November 2017, approximately 56 years after service separation. The Board must note the lapse of many years between the Veteran's separation from service and the first diagnosis of sensorineural hearing loss. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). As such, service connection for hearing loss cannot be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. However, service connection for hearing loss can still be established if evidence shows that a current impaired hearing disability is actually due to incidents during service. Hensley v. Brown, supra. With regards to direct service connection, a November 2017 VA examiner opined that it was not at least as likely as not that the Veteran's bilateral hearing loss was caused by or a result of an event in military service. The examiner noted that the Veteran's hearing was normal at separation in July 1961 with thresholds too low for any permanent significant shift to have occurred on active duty. The examiner stated that there was evidence of no permanent auditory damage from conceded noise on active duty. The examiner also noted that there was no report of hearing loss or acoustic trauma during service or at separation, and there was no evidence of continuity of care or chronicity of hearing loss from service until the claim. The examiner concluded that the objective evidence is against a finding that the Veteran's current hearing loss was caused by or a result of military service, including noise exposure. The November 2017 examiner's opinion is entitled to significant probative weight because the examiner explained the reasons for the conclusions found and based them on an accurate review of the relevant evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no contrary opinion of record. The Board acknowledges the Veteran's assertions that he was exposed to loud noises in service, which he claims caused his hearing loss. It is true that the Veteran's statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); also see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, relating noise exposure in service to a current disability, especially with a lengthy gap in the medical record and a delay in a noticeable loss, requires opinion evidence from experts with medical training, and is not subject to lay assessment. The Board finds the opinion of the VA examiner to be more persuasive than the Veteran's lay assertions. Absent competent evidence establishing a link between current hearing loss and service, the claim for service connection for hearing loss cannot be granted. Again, there is more than a 56-year gap between the Veteran's discharge from service and the first objective evidence of a disability. There is no competent evidence linking the remote onset to an in-service event. Rather, the only competent opinion addressing the origin of the disability is a negative opinion. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for hearing loss. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.