Citation Nr: 21009671 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-21 124 DATE: February 23, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT A bilateral hearing loss was not manifest during service or within one year of separation and hearing loss disability is not otherwise related to service. CONCLUSION OF LAW A bilateral hearing loss disability was not incurred or aggravated during service, nor may a sensorineural hearing loss (organic disease of the nervous system) be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1962 to October 1966. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in connection with his April 2017 substantive appeal (VA Form 9). In subsequent correspondence from the Veteran dated November 2019, the Veteran withdrew the hearing request. The Board remanded the Veteran’s claim in August 2020. The Veteran’s claims folder has returned to the Board for further appellate consideration. Service connection for a bilateral hearing loss disability Veterans are entitled to compensation from VA 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 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including organic disease of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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). For VA purposes, 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, 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 Board notes that the Veteran has not claimed that his disability on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran has described onset of his hearing loss due to noise exposure during active service, to include as due to performing his duties as a machine gunner and working on the rifle range. See a statement from the Veteran dated January 2015. The Veteran’s service treatment records are absent complaints of or treatment for hearing loss. However, service records show the Veteran’s military occupational specialty (MOS) was a machine gunner and he received the Rifle Marksman Badge. Therefore, his reports of in-service noise exposure are consistent with his duties. On enlistment examination in July 1962, puretone thresholds were recorded as: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) -10 (0) X 0 (5) LEFT 15 (30) 5 (15) 0 (10) X -5 (0) On separation examination in October 1966, puretone thresholds were recorded as: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) X 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) The Board notes that the dates of the Veteran’s enlistment and separation examinations were prior to December 31, 1970 and there is no indication as to which standard (American Standards Association (ASA) or International Standards Organization ISO-ANSI standards was used. For purposes of comparison between the service audiometric data and more recent VA audiometric data, VA must convert the ASA measurements recorded in service to the comparable ISO (ANSI) measurements. The Board has converted the ASA units to ISO units in parentheses above. The Board acknowledges the Veteran’s report of hearing loss since service. Notably, the Veteran was provided a VA audiological examination in May 2015. The audiological evaluation revealed a bilateral hearing loss disability for VA evaluation purposes. Puretone threshold during the VA examination was 40 dB or greater at 2000 Hz, 3000 Hz, and 4000 Hz in the right ear and more 40 dB or better at 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz in the left ear. Accordingly, the Veteran met the regulation criteria for a bilateral hearing disability under 38 C.F.R. § 3.385. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current bilateral hearing loss disability is related to his service. Specifically, the Veteran’s claims folder was referred to an appropriate medical professional for an opinion as to the etiology of the Veteran’s bilateral hearing loss disability. In a November 2020 opinion, the VA examiner concluded after review of the Veteran’s medical history that it is less likely than not that the Veteran’s current bilateral hearing loss disability is related to service to include noise exposure. The examiner’s rationale for her conclusion was based on her finding that although the Veteran had in-service noise exposure and the Veteran reported a history of hearing loss since service, there was no significant permanent shift in hearing thresholds from enlistment to separation. The examiner opined that there was no objective evidence of permanent auditory damage and moreover, there was no evidence of a decrease in hearing throughout service based on the normal findings. The November 2020 VA opinion was based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with a bilateral hearing loss disability for more than 45 years after active service. The examiner also noted the Veteran’s in-service noise exposure which was determined to be less likely as not related to the current bilateral hearing loss disability. The Board notes that M.W., M.D. opined in a June 2016 private treatment record that the Veteran’s current hearing loss is most likely related to in-service noise exposure. However, Dr. M.W. did not provide a rationale for his conclusion. Also, contrary to the November 2020 VA opinion report, Dr. M.W. did not address the normal audiological findings during service. Therefore, the Board finds the opinion of Dr. M.W. to be of no probative value. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Board notes that the Veteran and his wife have submitted statements indicating a positive nexus between the Veteran’s current bilateral hearing loss disability and service. To the extent the Veteran and his wife assert that the Veteran’s current bilateral hearing loss disability is related to his service, the Veteran and his wife are competent to report that he has a current diagnosis for VA evaluation purposes (as that is documented in the record). They are also competent to report that he has had symptoms since service. However, hearing loss was not noted during service. In as much as the October 1966 separation examination revealed a normal audiological evaluation, he did not have characteristic manifestations sufficient to identify the chronic disease entity during service or within one year of separation. 38 C.F.R. § 3.303(b). The Board observes that the Veteran and his wife reported longstanding hearing loss. The Board notes that the Veteran and his wife are competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal audiological examination upon separation from service in October 1966. Further, the in-service examination is more credible and probative than his after-the-fact lay assertions. We conclude that the normal audiological examination upon separation is far more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must therefore find that the Veteran’s and his wife’s statements with regard to a nexus between his bilateral hearing loss disability and service to be of minimal probative value and outweighed by the VA opinion, prepared by a skilled neutral professional. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2020). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.