Citation Nr: 21009475 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-43 697 DATE: February 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran has not been shown to have current bilateral hearing loss that manifested in service or within one year thereafter or that is otherwise 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. §§ 1101, 1110, 1112, 1113, 1131, 1137; 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 in the United States Army from September 1968 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing has been associated with the claims file. The case was remanded in February 2020 for additional development. That development has been completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. 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); Fountain v. McDonald, 27 Vet. App. 258 (2015). 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 (including sensorineural hearing loss), 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, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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, 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss. The Veteran’s service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss. An April 1970 separation examination found his ears and drums to be normal, and an audiogram revealed normal hearing bilaterally, which provides affirmative, objective evidence showing that the Veteran did not have hearing loss at that time. He also described his health as excellent at the time of the separation examination, and he specifically denied having any medical history of hearing loss. To determine that a chronic disease was “shown in service,” the disease entity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. However, as noted above, the Veteran’s service treatment records do not show that he had hearing loss during service. Indeed, there are no audiological findings demonstrating that he had hearing loss as defined by 38 C.F.R. § 3.303 Moreover, the evidence does not show that hearing loss manifested to a compensable degree within one year of the Veteran’s military service. Following his separation from service, there is no indication in the record to suggest that the Veteran sought treatment for hearing loss, and there is no evidence of the disorder within one year of his military service. Indeed, the Veteran did not report or complain of hearing loss for many years following his separation from service, and he told a VA audiologist in November 2017 that his hearing loss occurred gradually over the last 25 years, which would have been many years after service. A private audiological examination in November 2013 showing some mild sensorineural hearing loss at 4000 Hertz and 8000 Hertz in the right ear and mild to moderate sensorineural hearing loss above 2000 Hertz in the left ear, but no specific complaints of diminished hearing acuity. Word discrimination was noted to be excellent bilaterally and he exhibited good communication skills. The Board does acknowledge the lay statements that the Veteran’s hearing loss began in service. See August 2017 correspondence; January 2020 Board hearing transcript. Laypersons are competent to report observable symptoms in service and thereafter. While laypersons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran can attest to factual matters of which he has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)); see also Barr v. Nicholson, supra. In this case, the Board finds that the Veteran is competent to state that he has had hearing loss since his military service. However, his allegations are inconsistent with the contemporaneous record. As previously discussed, there is no evidence of any complaints, treatment, or diagnosis in service, and a clinical evaluation at time of separation found his ears and drums to be normal. In fact, the audiogram findings at the time of his separation examination provide affirmative evidence showing that he did not have hearing loss at that time (as opposed to a mere absence of evidence). In addition, the Veteran has made inconsistent statements regarding the onset and history of his hearing loss. For example, he testified at the January 2020 hearing that his hearing loss had its onset shortly after discharge and that his wife noticed that he had problems hearing when he came home from Vietnam. However, in November 2017 he reported gradual hearing loss over the previous 25 years, which would have been many years after his military service. For these reasons, the Board finds that the reported onset and history of hearing loss is not reliable or credible. Therefore, the Board concludes that the Veteran’s hearing loss did not manifest in service or for many years thereafter. Nevertheless, the Board notes that 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 was exposed to acoustic trauma during his period of service 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 military noise exposure. His Veteran’s service personnel records document his service in the Republic of Vietnam from March 1969 to April 1970. His military occupational specialty (MOS) was “Draftsman, Map,” and he was a radio operator and served in a fire direction center. The Veteran has reported that he was continually exposed to gunfire from a battery of six 155 mm howitzers, as well as enemy mortar fire. He has also indicated that the ear plugs provided by the Army were ineffective and difficult to use while carrying out his duties as a fire direction control chief. In addition, the evidence shows that the Veteran has a current hearing loss disability for VA purposes as defined by 38 C.F.R. § 3.385. Therefore, the remaining question in this case is whether his current hearing loss is related to his military service. The February 2017 VA examiner acknowledged the Veteran’s service in Vietnam and his military noise exposure. However, the examiner opined that his current hearing loss was less likely than not related to military service, explaining that the service treatment records were silent for complaints of hearing loss and that he denied having hearing loss at the time of his separation. The examiner noted that there were no significant threshold shifts (greater than or equal to 15 decibels) in the left ear during service. Although there was a significant threshold change at 500 Hertz (20 decibels) in the right ear, she explained that a low frequency is not the typical frequency affected by military noise exposure. Nevertheless, the February 2017 VA examiner did not address whether the Veteran’s delayed-onset hearing loss could be related to his military service, regardless of the fact that the disorder did not have its onset therein. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In addition, the Veteran submitted additional evidence which the examiner did not have the opportunity to consider. Moreover, the examiner did not indicate whether she converted any audiometric results using American Standards Association (ASA) standards to International Standards Organization-American National Standards Institute (ISO-ANSI) standards to facilitate data comparison. Therefore, the Board remanded the claim for an additional medical opinion. Following the February 2020 remand, a VA examination was conducted in August 2020. Puretone testing confirmed bilateral hearing loss for VA purposes, and the examiner noted the history of hazardous noise exposure in Vietnam. However, the examiner opined that the Veteran’s bilateral hearing loss is less likely than not related to noise exposure during military service. She explained that the audiological examinations in service were normal and that the Veteran denied any hearing loss or ear problems on the April 1970 report of medical history. In November 2017, he complained of gradual hearing loss over the last 25 years, which would indicate hearing loss beginning in the 1990s, many years after service. She found no evidence to indicate onset of hearing loss during service or within a reasonable time thereafter. The August 2020 VA examiner also explained that the purpose of military audiological examinations is to monitor hearing status during military service and at separation from service. She indicated that significant shifts in hearing at frequencies above 1000 Hertz would be consistent with evidence of noise injury, acoustic trauma, but that there may not be hearing loss. The examiner noted that many military occupations have significant noise exposures; however, not all military personnel have resultant hearing loss. The examiner stated that it is significant to note that, on the April 1970 separation report of medical history, the Veteran indicated “no” to past or present hearing loss and also indicated his statement of health was “excellent.” The Veteran had further checked “no” to past or present ear, nose or throat problems. The August 2020 VA examiner further explained that hearing loss from noise exposure often follows a pattern of a noise notch, but in this case, there was no evidence of a noise notch at the separation audiological examination. A shift was noted at 6000 Hz in the right ear; however, the Veteran’s hearing remained within normal limits. She found that this shift at the April 1970 audiological examination was consistent with the Veteran’s reported onset of tinnitus during military service, and he is already service-connected for tinnitus. The examiner noted that there can be a subjective complaint of tinnitus without accompanying hearing loss. In addition, the August 2020 VA examiner observed that the Veteran reported in 2017 that he noticed gradual hearing loss for approximately 25 years, indicating an onset of hearing loss significantly post-military service. The examiner stated that gradual decline in hearing is also more consistent with presbycusis and not noise exposure. It should also be noted that at this audiological examination, many years after service, hearing status in the right ear did not meet VA criteria for a disability. The examiner indicated that there is no question that the Veteran experienced significant noise exposure during his military service; however, the objective measure, the audiological examination of April 1970, clearly documented that his hearing remained within normal limits per VA criteria. There was no evidence of onset of hearing loss in service. The examiner opined that the predominant evidence would indicate that the Veteran’s current hearing loss is less likely as not caused by or a result of military noise exposures. There was no evidence to review to indicate that the Veteran sought help for hearing loss until many years post-military service. There is also no evidence to support that current hearing loss is a result of noise exposures during military service. The Board acknowledges that the Veteran submitted a medical opinion from Dr. C.C. (initials used to protect privacy) in January 2020. However, there is no indication that Dr. C.C. had the opportunity to review the claims file, including the service treatment records. His opinion appears to be based solely on the Veteran’s reports of acoustic trauma in service and does not account for the finding that his hearing was normal at that time of his separation from service. As such, it is entitled to limited probative value. There is no other medical opinion indicating that the Veteran has hearing loss that is related to his military service. The Board has also considered the statements of the Veteran asserting that he has hearing loss that is related to his military service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of hearing loss, falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, to the extent that the Veteran is competent to opine on this matter, the Board finds that the specific, reasoned opinion of the August 2020 VA examiner is of greater probative weight than the Veteran’s lay assertions in this regard. The examiner reviewed the claims file and the Veteran’s own reported history, and she has training, knowledge, and expertise on which she relied to form her opinion. She also provided a thorough rationale for the conclusion reached. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.