Citation Nr: 21007241 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 19-16 248 DATE: February 9, 2021 ORDER Service connection for right ear hearing loss is denied. FINDING OF FACT Right ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1964 to June 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2018 by a Department of Veterans Affairs (VA) Regional Office. In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2020 and November 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for right ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that high frequency sensorineural hearing loss is considered an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his currently diagnosed right ear hearing loss is related to his in-service exposure to excessive noise from weapons and generators without the use of hearing protection. Thus, he claims that service connection for such disorder is warranted. As an initial matter, the Board notes that an October 2018 VA examination reflects a diagnosis of right ear sensorineural hearing loss that meets VA criteria for a current hearing loss disability. As for an in-service injury, disease, or incident, the Board finds the Veteran’s reports of in-service noise exposure are consistent with his military occupational specialty of ordinance supply specialist. Additionally, a May 1966 separation examination report reflects a decrease in the Veteran’s right ear hearing acuity by five to 10 decibels at the 500, 1000, 2000, and 4000 Hertz levels when compared to a March 1964 pre-induction report. Thus, the remaining inquiry is whether the Veteran’s current right ear hearing loss is related to his military service. As noted in the January 2020 Remand, the October 2018 VA examiner relied on the inaccurate factual premise that some right ear hearing loss existed prior to service and did not address the significance, if any, of the shifts in pure tone thresholds noted above. Consequently, such opinion is inadequate for the purpose of determining entitlement to service connection. Similarly, the Board found in the November 2020 Remand that opinions provided in February 2020 and September 2020 were insufficient upon which to base a determination of service connection. Specifically, the February 2020 opinion focused on mild pre-existing hearing loss at 6000 Hertz and no evidence of hearing loss on the May 1966 separation examination without addressing the aforementioned shifts. With respect to the September 2020 opinion, the examiner addressed only the in-service shifts in hearing acuity as pertinent to the Veteran’s left ear. Thus, the Board again remanded the issue in November 2020 for an addendum opinion addressing such matters. In December 2020, a VA audiologist noted the Veteran’s enlistment audiogram showed normal hearing by VA standards, with a mild pre-existing hearing loss in the right ear when examined above 4000 Hertz. Additionally, he considered the Veteran’s moderate probability of noise exposure based on his military occupational specialty and his exposure to machine gun noise, shooting, missile noise, and generators. However, the VA audiologist found there was no evidence of a significant shift in hearing during service. In this regard, he reported that the separation audiogram, as converted from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI) units (as is required for all service department audiograms conducted prior to January 1, 1967), showed normal hearing by VA standards. The VA audiologist also acknowledged the slight decrease of five to 10 decibels at various frequencies, but judged such to be the result of “test/retest reliability”. Further, he deemed significant the Veteran’s October 2018 report that he first became aware of hearing problems in the late 1980s or early 1990s, which was well after his time in service. Therefore, the VA audiologist opined the Veteran’s right ear hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Upon review, the Board affords great probative value to the VA audiologist’s December 2020 opinion as such was based on a review of all of the pertinent evidence of record, to include the lay statements and the Veteran’s relevant medical history, and provide a complete rationale, relying on and citing to the records reviewed. Moreover, the VA audiologist offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). The opinion is also consistent with the contemporaneous medical evidence of record, to include the Veteran’s service treatment records and post-service treatment records, and contemplates his specific circumstances. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). Furthermore, the Board notes there is no medical opinion to the contrary. The Board has considered the Veteran’s statements that his right ear hearing loss is related to his acknowledged in-service noise exposure; however, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder is a matter not capable of lay observation. Rather, such requires medical expertise to determine. Specifically, the question of the diagnosis and etiology of hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it requires the administration and interpretation of audiological testing and knowledge of the impact noise exposure has on the inner ear. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his right ear hearing loss is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that right ear hearing loss manifested to a compensable degree within one year of the Veteran’s separation from active duty. In this regard, as noted by the December 2020 VA audiologist, his separation examination revealed normal right ear hearing acuity, and he denied currently or previously experiencing hearing loss at such time. In addition, the Veteran testified that physicians first diagnosed hearing loss in 2017, whereas the medical evidence of record does not reflect a diagnosis of right ear hearing loss until 2018. Regardless, the diagnosis of right ear hearing loss would post-date his military service by at least 50 years. Additionally, a March 2007 private treatment record shows the Veteran had normal hearing at that time. Moreover, the Veteran himself reported at the October 2018 VA examination that he first became aware of hearing problems in the late 1980s or early 1990s, which would be at least 20 years following his separation from service. However, he testified at the November 2019 hearing that first noticed hearing loss approximately four to five years after service. Nonetheless, the Veteran does not report symptomatology associated with right ear hearing loss within the year following his separation from service. Furthermore, whether the symptoms the Veteran reportedly experienced after service are in any way related to his currently diagnosed right ear hearing loss is a matter that also requires medical expertise to determine. Clyburn v. West, 12 Vet. App. 296, 301 (1999) (“although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). Based on the foregoing, the Board finds presumptive service connection for right ear hearing loss, to include on the basis of a continuity of symptomatology, is not warranted. In conclusion, the Board finds that right ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for right ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.