Citation Nr: 21074218 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-49 876A DATE: December 14, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran's right ear hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Coast Guard from July 1965 to January 1966. This matter comes to the Board of Veterans' Appeals (the Board) following a September 2017 rating decision in which the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for entitlement to service connection for right ear hearing loss. The Veteran's appeal was previously before the Board in July 2019 when it was remanded for a new Department of Veterans Affairs (VA) examination. 1. Entitlement to Service Connection for Right Ear Hearing Loss The Veteran contends that his right ear hearing loss was caused by his active service. Specifically, he relates his right ear hearing loss to his in-service treatment for right ear otitis media. He believes the otitis media caused him to develop right ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Entitlement to service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for an 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). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Sensorineural hearing loss qualifies as a chronic disease, as it is considered an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 266 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the claimed disability qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). As sensorineural hearing loss is a chronic disease, service connection via the demonstration of continuity of symptomatology is applicable. The question for the Board is whether the Veteran has a current disability that began during service and has been continuous since then or that is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of right ear hearing loss for VA purposes. The evidence also shows an in-service diagnosis of otitis media in August 1965. However, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's current right ear hearing loss began during active service and has been continuous since then or is otherwise related to an in-service injury, event, or disease. The findings of the Veteran's service discharge examination has been found to be unreliable due to the use of whispered voice testing instead of audiometric testing. However, the fact remains that evidence of record does not show complaints or treatment for hearing loss in service. There is likewise no evidence of a diagnosis of right ear hearing loss until his September 2017 VA examination, which is decades after his separation from active service. Moreover, the Veteran has not alleged that he has experienced symptoms of right ear hearing loss either intermittently or consistently since service. There are no private or VA treatment records or lay statements demonstrating otherwise. The Veteran has also received two VA examinations in September 2017 and December 2019 to address the nature and etiology of his hearing loss disability. Taken together, these opinions establish that the Veteran's current right ear hearing loss is less likely than not related to an in-service injury, event, or disease, including in-service noise exposure and the 1965 episode of otitis media documented in his service treatment records. The examiner who performed the September 2017 VA examination reasoned that the Veteran's right ear hearing loss was less likely than not due to in-service noise exposure. She noted that while the Veteran reported noise exposure due to small arms, machine guns, grenades, and flamethrowers during training, his military occupational specialty (MOS) of radar operator has a low probability of noise exposure. Additionally, she concluded that hearing acuity can diminish due to aging. An addendum opinion was obtained in December 2019 following the Board's July 2019 remand. This examiner also proffered a negative etiological opinion, as she found no complaints of right ear hearing loss during or shortly after service in the Veteran's claims file. As required by the Board's remand, the examiner considered the 1965 ear infection noted in the Veteran's service treatment records but concluded that it did not cause his current right ear hearing loss because no permanent damage was noted. The examiners' combined opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). No competent medical opinion has been presented that supports the claim. While the Veteran believes his right ear hearing loss is related to his in-service episode of otitis media, he is not competent to provide a nexus opinion regarding this issue. The etiology of his right ear hearing loss is medically complex, as it requires the ability to administer and interpret complicated diagnostic tests. Therefore, it is outside the Veteran's competence in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Consequently, the Board gives more probative weight to the September 2017 and December 2019 etiological opinions. While continuity of symptomatology can be used as an alternative to the second and third Shedden elements in this case because sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309(a), the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1336. The Veteran has not asserted, nor does the evidence show, that his right ear hearing loss began during service or within one year following service, nor has he stated that his hearing loss has been continuous since service. As such, entitlement to service connection on a presumptive basis is not warranted. Accordingly, the Board finds that a preponderance of the evidence is against the Veteran's claim for entitlement to service connection for right ear hearing loss. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.