Citation Nr: 21008980 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-30 940A DATE: February 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence of record shows that the Veteran’s bilateral 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 establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 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 in the United States Marine Corps from May 1984 to March 1988. The Veteran had an additional period of service from March 1988 to January 1990 that was characterized as dishonorable. As such, the period of military service from March 1988 to January 1990 is not qualifying service for VA purposes. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO). Bilateral Hearing Loss—Legal Criteria Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). If a chronic disease enumerated in 38 C.F.R. § 3.309(a) is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bilateral hearing loss is an organic disease of the nervous system and thus falls within 38 C.F.R. § 3.309(a). See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (stating “the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an ‘[o]rganic disease[ ] of the nervous system’“.). Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA 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. The failure to meet these criteria at the time of a Veteran’s separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant “may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.” Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (2012); 38 C.F.R. § 3.102 (2017); 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), citing Gilbert, 1 Vet. App. at 54. Analysis The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. The Veteran contends that he has experienced bilateral hearing loss due to his MOS as a Rifleman and exposure to loud noise while in active duty service. The Board notes that the Veteran’s MOS has a high possibility for noise exposure. The medical evidence demonstrates that the Veteran has a current diagnosis of bilateral hearing loss as defined by the VA. See the May 2019 VA examination report. In addition, the VA concedes the Veteran’s reported military noise exposure. The Veteran’s service treatment records (STRs) do not indicate any complaints or treatment for hearing loss while in service. The Veteran provided lay statements wherein he reported that he was exposed to loud noise as an infantry soldier such as live fire trainings, training alongside artillery units, and bomb drop trainings. The Veteran also submitted lay buddy statements from family members and friends who knew the Veteran both before and during his active duty service. The buddy statements note that when the Veteran would be home on leave, he would need people to constantly repeat what they said to him and they would need to speak loudly for the Veteran to hear them. Additionally, the lay statements noted that, when conversing on the phone, the Veteran would have difficulty understanding them. Finally, they noted that when watching TV, or listening to the radio, the Veteran would turn the volume up. The individuals who provided lay statements are competent to report what they directly observed. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, they are not competent to diagnose the Veteran with hearing loss, and the Board additionally notes that the lay buddy statements do not indicate whether their observations occurred during the Veteran’s period of honorable service. The Veteran initially underwent a July 2012 VA Hearing Loss examination. The examiner found that the Veteran did not have a current hearing loss disability for VA purposes. The Veteran submitted a private March 2014 Audiological examination which indicated that he potentially had hearing loss for VA purposes. However, the examination did not provide Maryland CNC scores and did not provide an etiological opinion regarding the Veteran’s hearing loss. Further, the Veteran submitted a private April 2019 Ear Conditions examination which noted that the Veteran had a current diagnosis of bilateral hearing loss, and that the condition began during the Veteran’s active duty service. However, the Board notes that the examiner does not indicate whether he reviewed that claims file or the Veteran’s STRs in opining on the Veteran’s current hearing loss. In response to the Board’s June 2018 remand, the Veteran was provided with a May 2019 Hearing Loss examination. The examiner diagnosed the Veteran with hearing loss for VA purposes. However, the examiner opined that the Veteran’s bilateral hearing loss was less likely than not (less than a 50 percent probability) etiologically related to his active duty service. The rationale provided was that while noise exposure was conceded and there is a link between noise exposure and auditory damage, there were no significant in-service threshold shifts and no report of treatment for hearing loss in the Veteran’s STRs. Therefore, the examiner found there was no nexus between the Veteran’s currently diagnosed hearing loss and his active duty service. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has “unique and readily identifiable features” that are “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The Board finds that the May 2019 VA examination more persuasive than the April 2019 private opinion and assigns it greater weight. The VA examiner conducted an in-person examination and reviewed the entirety of the Veteran’s claims file. The Board may afford greater weight to one opinion over another on the basis of such factors as the reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner’s opinions were based on a thorough review of the record, medical history, and military history; while it is not certain what documents the private examiner reviewed when forming their opinion. The probative value of a medical opinion is usually based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings. Guerrieri v. Brown, 4 Vet. App. 467 (1993). As such, the Board affords the VA examiner’s opinion greater weight. The Board has considered the Veteran’s lay statements in support of his claim. He is competent to report that he had hearing problems during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case the Veteran reported that he was exposed to loud noise in service. Additionally, the Veteran provided lay buddy statements from family and friends which indicated while the Veteran was in active duty service, he had difficulty understanding people and needed to have things repeated and spoken at a louder volume in order to hear them. However, the neither the Veteran, nor the lay buddy statements, distinguish between the Veteran’s period of honorable or dishonorable service. Additionally, the Board notes that the Veteran was not diagnosed with hearing loss for VA purposes until at least March 2014, nearly 26 years after his period of honorable service. As such, the Board weighs the above-mentioned VA examination’s negative nexus opinion against the Veteran’s lay contentions that his current hearing loss was caused by service. The Board has thoroughly reviewed the record. The only competent medical evidence which addresses the etiology of the Veteran’s hearing loss is the May 2019 opinion summarized above. As noted above, in this opinion, a VA medical expert determined the Veteran’s hearing loss was unrelated to service, and supported his opinion by citing to the Veteran’s STRs, claims file, and the results of the in-person examination. In sum, there is no evidence of an in-service condition, no medical evidence that bilateral hearing loss developed within a year of discharge, and no competent medical nexus linking the Veteran’s current conditions to service. Under these circumstances, the Board finds that a preponderance of the evidence weighs against the Veteran’s claims for service connection for bilateral hearing loss. As such, the benefit-of-the-doubt doctrine is inapplicable, and the claims must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.