Citation Nr: 21007565 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-23 532 DATE: February 10, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is denied. FINDING OF FACT A right ear hearing loss disability did not have its onset in service, sensorineural hearing loss was not manifested within one year following service discharge, and a right hearing loss disability is not otherwise related to service. CONCLUSION OF LAW The criteria for to service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 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 served on active duty from June 1961 to June 1965. In December 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2019, the Board denied the claims for service connection for a bilateral hearing loss disability, tinnitus, and a dental condition. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand with respect to the part of the May 2019 Board decision that denied service connection for a bilateral hearing loss disability and tinnitus to vacate and remand the claims back to the Board, which was granted by the Court. In August 2020, the Board remanded the claims for service connection for a bilateral hearing loss disability and tinnitus to obtain VA and private treatment records and a new VA examination. The Board finds there was substantial compliance with this development. In December 2020, the Agency of Original Jurisdiction granted the claims for service connection for a left ear hearing loss disability and tinnitus, effective October 15, 2012. Thus, these claims are no longer part of the current appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by 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. Service connection may 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, which is an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Entitlement to service connection for a right ear hearing loss disability. The Veteran contends his right ear hearing loss disability is the result of acoustic trauma in service. While stationed in Turkey, the Veteran worked as a Morse Interceptor for 15 months, and after a few months, he started having ringing in his ears and a tin can type of sound. When he came back from service, his mother noted he was speaking loudly which she stated could be a sign of his hearing going bad. After service, he still experienced ringing in his ears. He stated that in 1968, he traveled to see his family doctor, who told him he showed signs of slight hearing loss and there was a possibility that he would lose more hearing gradually over time. The Veteran testified that he did not have a hearing test at discharge, and the examiner, instead, wrote down fictitious audiogram results. He stated he could never afford a hearing aid, so he kept going without one even though his siblings hounded him about his need for a hearing aid for a long time. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a right ear hearing loss disability. The reasons follow. As to evidence of a current disability, the facts show the requirement of a current right ear hearing loss disability for VA purposes as documented in the May 2013 private audiological evaluation and December 2020 VA examination. 38 C.F.R. § 3.385. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the Board has conceded the Veteran had in-service noise exposure. Therefore, the facts establish that the second element of a service-connection claim is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the Veteran’s service treatment records (STRs) do not document complaints of, treatment for, or diagnosis of right ear hearing loss disability. A May 1965 Report of Examination, conducted just one month prior to the Veteran’s June 1965 service discharge, shows that clinical evaluation of the ears and hearing was normal. Audiological evaluation with pure tone thresholds, in decibels, were obtained for the frequencies, in Hertz (Hz) as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 0 5 0 0 0 LEFT 25 0 0 0 0 The Veteran was also assigned a “1” rating assessing hearing under the PULHES profile system, indicating that his hearing was in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Additionally, on the May 1965 discharge Report of Medical History, the Veteran denied a history of ear, nose, or throat problems and running ears (while reporting yes to other symptoms he had experienced). These facts tend to show that the Veteran was not experiencing hearing loss in his right ear during service or at service discharge. The Veteran contends the May 1965 discharge examiner did not perform an audiogram and reported fictitious results. The Board does not find the Veteran’s statement is supported by the contemporaneous evidence because the audiogram is filled out completely between 500 and 4000 Hz, which the Board find is indicative of a completed audiogram. This document was completed contemporaneously with the Veteran’s service, and the Board has no reason to question the authenticity of the separation examination. The examiner documented that the Veteran had failed the color vision test, which shows that the examiner took care in evaluating the Veteran at that time. The audiogram also shows a threshold shift between entrance and discharge for the left ear, and the Veteran has been granted service connection for left ear hearing loss disability as a result of the threshold shift documented in the separation examination. The Board finds it is unlikely an examiner would make up audiogram results including a threshold shift at discharge. The Veteran reported during the December 2020 VA examination that he first experienced hearing loss in 1963, which may have involved his left ear, which hearing loss is now service connected. The August 2013 VA examination was found to be inadequate by a prior Board decision, so it will not be discussed here. The November 2020 VA examiner provided a negative nexus opinion. The examiner distinguished between the right ear and the left ear when providing the medical opinion. For example, the examiner wrote that a threshold shift and hazardous noise exposure provided a nexus to relate the current left ear hearing loss to military noise exposure. The examiner wrote that regarding the right ear hearing loss, audiometric thresholds from the service treatment records show there was no significant threshold shift in Veteran's hearing sensitivity from entrance to separation, which the examiner explained is objective evidence of no permanent auditory damage on active duty from conceded noise exposure. The examiner added that although noise exposure is conceded, auditory damage and hearing loss are not conceded based on noise alone. The examiner explained there must be a nexus of auditory damage to relate the current right ear hearing loss to military noise and not another etiology. The examiner concluded that the evidence is against a nexus in this case for the right ear, and, therefore it is less likely than not that the right ear hearing loss is related to military noise exposure. The Board affords the November 2020 VA examination high probative value because it is based upon a review of the claims file, an in-person examination, and the examiner provided a rationale that is based on the evidence of record including consideration of the Veteran’s lay statements and medical principles. Additionally, there is no competent evidence that sensorineural hearing loss was manifested within one year following service discharge. The Veteran reported that he visited his family doctor in 1968 to have his hearing examined which is three years after service. Although the Veteran reported exposure to loud noises in service, which is conceded, the service treatment records do not document complaints of hearing loss in service, and during his discharge examination, his hearing in the right ear was assessed as normal. Thus, presumptive service connection based on a chronic disease is not warranted. The Board has considered the relevant lay evidence of record, including the Veteran’s December 2018 testimony. The Veteran is competent to report observable symptoms, such as hearing difficulty. To the extent he asserts that he noticed hearing loss in service, he is correct in that there was a significant threshold shift in his left ear at service separation, which would indicate he had some level of hearing loss in service. However, to the extent he has attempted to allege that in-service noise exposure caused his current right ear hearing loss, he is not competent to provide this determination, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Given the above, the Board concludes that the preponderance of evidence weighs against the Veteran’s claim for service connection for a right ear hearing loss disability. As such, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.