Citation Nr: 21074481 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-23 748 DATE: December 15, 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 thereafter and is not otherwise causally or etiologically related to his military service. CONCLUSION OF LAW Bilateral hearing loss was not incurred in active service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113; 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 from August 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in August 2019. A transcript of the proceeding has been associated with the claims file. The Board remanded the case for further development in December 2019. That development was completed, and the case has since been returned to the Board for appellate review. The Board also notes that the appeal had originally included the issue of entitlement to service connection for tinnitus. However, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted service connection for tinnitus in an October 2020 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). As such, that issue is no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or the effective date assigned). Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). 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 organic diseases of the nervous system, including sensorineural hearing loss, are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. Initially, the Board notes that a June 1968 enlistment examination found the Veteran to have a puretone threshold of 85 decibels at 2000 Hertz in the right ear, which meets the requirements of 38 C.F.R. § 3.385. Thus, the presumption of soundness would not apply for the right ear. 38 C.F.R. § 3.304; McKinney v. McDonald, 28 Vet. App. 15, 23 (2016). However, in the notes section of the report, the examiner indicated that there were no additional defects found and that the Veteran was fit for military service. Moreover, all subsequent examinations did not reveal right ear hearing loss in service or even in August 2012. The August 2012 VA examiner also acknowledged such facts, but found that the Veteran did not have preexisting right ear hearing loss. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds that there was likely an error during the testing in June 1968 or the recording of the results and that the presumption of soundness should apply. With the exception of the June 1968 enlistment examination, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss. In fact, audiograms performed in January 1969, March 1969, April 1969, July 1969, and July 1971 revealed normal hearing bilaterally. A July 1971 separation examination also found his ears and drums to be normal. The Board notes that sensorineural hearing loss, nor manifestations sufficient to identify the disease's entities, was shown during the Veteran's military service. Rather, the hearing examinations performed during his active service were normal. The pertinent regulations require that manifestations are "noted" in the service. Therefore, while currently diagnosed sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of sensorineural hearing loss has been shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and sensorineural hearing loss may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. The medical and lay evidence also does not show that the Veteran had hearing loss that manifested to a compensable degree within one year of his separation from military service in July 1971. Indeed, VA treatment records dated in November 2011 and December 2011 document the Veteran's reports that his hearing had decreased during the past one to two years, and an August 2012 VA examination found him to have normal hearing in his left ear. Moreover, during the August 2019 hearing, the Veteran testified that he could not recall when his hearing loss started. For these reasons, the Board finds that the Veteran's bilateral hearing loss did not manifest in service or for many years thereafter. Nevertheless, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has claimed that he had military noise exposure and that this was the injury sustained from which his hearing loss resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding his military noise exposure. In addition, the post-service medical records, including an October 2020 VA examination, show that the Veteran has been diagnosed with bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385. Thus, the remaining question is whether the Veteran's current bilateral hearing loss is related to his noise exposure in service. The Veteran was afforded a VA examination in August 2012 in connection with his claim for service connection for bilateral hearing loss. The examiner diagnosed him with bilateral sensorineural hearing loss; however, he did not have a current hearing loss disability for VA purposes. See 38C.F.R. § 3.385. The examiner also opined that any hearing loss was not at least as likely as not caused by or a result of an event in military service. In rendering the opinion, she noted that the Veteran did not seek treatment until 2011 at which time he reported that his hearing problems began two years earlier. The examiner also observed that the Veteran has a longstanding history of both occupational and recreational noise exposure. Nevertheless, the Board notes that the August 2012 VA examiner stated that the last audiogram performed in service was in July 1969, which was two years prior to the Veteran's separation. However, as previously noted, the claims file does contain a copy of the Veteran's July 1971 separation examination report, including audiogram results. Thus, the examiner appears to have relied upon an inaccurate or incomplete factual premise. Therefore, the Board finds that the opinion has limited probative value. An October 2020 VA examination later revealed bilateral hearing loss as defined by 38 C.F.R. § 3.385. However, the examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. In so doing, she noted that the hearing examinations in service revealed normal hearing sensitivity in both ears and that the Veteran reported noticing a change or decrease in his hearing ability starting sometime around 2009, which would have been approximately 40 years after his military noise exposure. The examiner also commented that the Veteran has a history of post-service noise exposure working as a carpenter and being near motorcycles and woodworking tools. She concluded that, due to the large time lapse between his military service and the onset of his hearing loss, as well as the Veteran's post-service noise exposure, she was unable to state that his current hearing loss is at least as likely as not caused by an event in service. Later in the report, the October 2020 VA examiner also indicated that there are multiple causes of hearing loss, including the aging process, genetic medical conditions, ear infections, illness, traumatic injury, or prolonged exposure to noise. She explained that, in most cases of noise-induced hearing loss, the primary damage is within the area of the inner ear, cochlea, that processes/hears high frequency sounds. She stated that individuals with noise-induced hearing loss start with a high frequency hearing loss on their audiogram. The Board affords substantial probative weight to the October 2020 VA examiner's opinion, as it is based on a review of the claims file, to include the Veteran's own statements and contentions, and an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner provided a thorough rationale in support of her conclusions. The Board acknowledges that the Veteran submitted a private audiogram and disability benefits questionnaire in support of his claim in May 2016; however, those records do not address the etiology of his current hearing loss. Indeed, there is no medical opinion otherwise relating the Veteran's current bilateral hearing loss to his military service. The Board has also considered the Veteran's lay statements that his current hearing loss is related to his military service, to include his noise exposure therein. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder and the post-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the October 2020 examiner's opinion is more probative on this matter, as it was provided by a medical professional with knowledge, training, and expertise and is supported by a complete rationale based on such knowledge. The examiner also reviewed the claims file and considered the Veteran's reported history and lay statements. Based on the foregoing, the Board finds that the Veteran's current bilateral hearing loss did not manifest in service or within one year thereafter and is not otherwise causally or etiologically related to his military service, to include noise exposure therein. The preponderance of the evidence weighs against the Veteran's claim, and as such, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection is not warranted for bilateral hearing loss. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.