Citation Nr: 21007947 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 12-15 937 DATE: February 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. FINDING OF FACT A bilateral hearing loss disability was not manifest during service and an organic disease of the nervous system (sensorineural loss) was not manifest within one year of separation. A bilateral hearing loss disability is unrelated to service. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1979 to July 1983. The Board of Veterans Appeals (Board) previously remanded this matter in April 2020 in order to obtain an addendum opinion. 1. Entitlement to service connection for bilateral hearing loss disability Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Sensorineural hearing loss is considered an organic disease of the nervous system, which is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). “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 distinguished from merely isolated findings or a diagnosis including the word ‘Chronic.’ When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303(b). The Veteran argues that his bilateral hearing loss was incurred in service due to exposure to hazardous noise from artillery, gunfire, generators, and trucks. He states that he first noticed hearing loss in around 1980. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. 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, 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 Veteran underwent examinations while he was in active duty for training in May 1976 and December 1976. The May 1976 examination returned the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 X 20 LEFT 10 10 25 X 10   The December 1976 examination returned the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 X 20 LEFT 35 20 15 X 15 A March 1982 audiological examination demonstrated the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 15 15 20 LEFT 10 5 10 10 20 At separation in July 1983, the Veteran declined to take a separation exam. Otherwise, a review of service treatment records shows no other relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of hearing loss. The Veteran’s file was examined by a VA examiner in November 2020. The audiological examination demonstrated the following results: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 65 70 60 65 75 80 LEFT 60 65 55 55 65 80 The examiner found that the test results were not valid for ratings purposes. The examiner ultimately concluded that the Veteran’s bilateral hearing loss was less likely than not was caused by or was otherwise related to the Veteran’s active service. The examiner reasoned that “Hearing loss is not documented occurring during service. Hearing loss and tinnitus are not marked as symptoms on 3/23/2009 and 12/12/2007 medical visits.” In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the September 2020 VA medical opinion that the Veteran’s hearing loss is less likely than not related to service as highly probative medical evidence on this point. The Board notes that the examiner rendered this opinion after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds this medical opinion to be highly probative as it is adequately supported by additional rationale explaining why the Veteran’s hearing loss could not be related to service. The Board has considered the lay statements of the Veteran regarding his hearing loss. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner’s opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner’s medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of bilateral hearing loss during active service, or within a year of separation. There is no evidence from the service treatment records that the Veteran had a threshold shift during service. There is no evidence that the Veteran complained of hearing loss at the time of discharge from service or for many years after. We find that the contemporaneous service records are far more probative and credible than any assertions regarding when he first noticed hearing loss. Here, an organic disease of the nervous system (SNHL) was not noted, manifest or diagnosed during service or within one year of separation. There is no reliable evidence linking the remote onset of hearing loss disability to service. In sum, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a bilateral hearing loss disability. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, 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.