Citation Nr: 21009499 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-22 400A DATE: February 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss did not begin during service or in the year after service and is not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to March 1967. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded the claim for additional evidentiary development; there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “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’ the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For a Veteran who served 90 days or more of active service after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, may be presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a); 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran, who separated from service in 1967, seeks service connection for bilateral hearing loss, which he contends is related to noise exposure during service. Hearing loss for the purpose of VA disability compensation is considered 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 Veteran has a current diagnosis of bilateral hearing loss. See May 2018 VA examination report. Objective testing confirms the bilateral hearing loss is considered a disability for VA purposes. 38 C.F.R. § 3.385. Turning to the second element of service connection, the Veteran reports that he was exposed to excessive noise during service, to specifically include noise from mortars and bombs. Additionally, the Veteran’s military personnel records list a military occupation specialty of radio operator, which, according to VA policy, indicates a moderate probability of exposure to hazardous noise. Therefore, the Board finds that the Veteran was exposed to excessive noise during service and the second element of service connection is met. Accordingly, the question in this case is whether a causal relationship or nexus exists between the Veteran’s bilateral hearing loss and in-service noise exposure. The Board finds the weight of the evidence is against the claim. The Veteran’s service treatment records (STRs) show that he had his hearing tested in March 1965, at the beginning of his service, and in March 1967, at his separation from active duty and the Veteran’s hearing was normal on both examinations. The Board notes that service department audiometric tests prior to October 31, 1967 were generally in ASA (American Standard Association) units and require conversion to ISO (International Organization for Standardization) units. While the ASA units generally assigned lower numeric scores to hearing loss than the ISO units, even after conversion, the audiological evaluations from the entrance and separation examinations document normal auditory thresholds. A May 1965 STR notes that the Veteran reported his right ear was plugged and that he could not hear well. There were no additional reports of ear trouble or symptoms of hearing loss in the Veteran’s STRs. Additionally, the Veteran reported no ear trouble or hearing loss on his March 1967 separation examination Report of Medical History. The Veteran was afforded VA examinations in September 2013 and May 2018 and both examiners provided negative nexus opinions. However, as the September 2013 and May 2018 VA examiners’ rationale essentially relied solely on the absence of documentary evidence as a rationale for the negative nexus opinion, the opinions are provided no probative weight. In October 2020, pursuant to the June 2020 Board remand, the RO obtained an addendum opinion. The October 2020 VA examiner noted that while it is conceded that the Veteran was exposed to hazardous noise exposure during military service, to include bombs and mortars as reported by the Veteran, and that the Veteran relates his hearing loss to the hazardous noise exposure during service, it is less likely than not that the Veteran’s hearing loss was incurred in or caused by his military service. The examiner explained that the mid to high frequencies are known to be particularly sensitive to acoustic trauma and that the Veteran presented with normal hearing during his March 1967 separation examination, notably in the mid to high frequencies. He found that to be etiologically relevant because in 2006, the Institute of Medicine found that the most profound auditory effects of noise exposure occur immediately following exposure, which suggests that if the Veteran’s hearing loss was caused by military noise exposure, it would have onset during service and would have been present at separation. There is also no competent medical opinion to the contrary. To the extent that the Veteran asserts his bilateral hearing loss incurred in active duty, the Board finds that he is competent to report experiencing decreased hearing, but not competent to determine the etiology of such a disability, as it is a complex medical question beyond the ability of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, there is no evidence that the Veteran’s hearing loss manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. Instead, the first evidence of bilateral hearing loss is over 50 years after active duty service. Nor is there any competent evidence of an in-service manifestation of hearing loss to allow for service connection based on continuity of symptomatology. See Walker, supra. In conclusion, given the Veteran’s entrance and exit examinations note normal hearing, specifically in the mid and high frequencies, and there is no evidence of bilateral hearing loss for VA purposes until over 50 years after the Veteran last left active service, the preponderance of the evidence weighs against the claim and is not in equipoise. Accordingly, service connection for bilateral hearing loss must be denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, 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.