Citation Nr: 21009835 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-38 091A DATE: February 23, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT The weight of the competent and credible evidence is against finding that the Veteran’s bilateral hearing loss disability manifested in service or within one year of service; and is not etiologically caused by an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1967 to January 1970 with service in the Republic of Vietnam. This matter comes before the Board of Veteran’s Appeals (Board) from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board video conference hearing in August 2019. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in November 2019 and was remanded for additional development, which has been completed. As such the Board finds that the prior remand directives have been substantially complied with and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Veteran’s claims for service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and service connection for headaches were previously before the Board. In an August 2020 rating decision service connection was granted for posttraumatic stress disorder rated as 70 percent disabling effective July 20, 2012. In addition, service connection for headaches was also granted rated as 30 percent disabling effective July 30, 2012. As such represents a full grant of benefits sought on appeal these issues are no longer before the Board. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. 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 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). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. In addition to the legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § § 3.385 Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that his current hearing loss and associated symptomology are related to exposure to ongoing noise and that his hearing loss manifested in-service. The Veteran contends that serving as a light weapons infantryman in Vietnam he was exposed to heavy artillery fire and mortar attacks. Further, the Veteran testified at his August 2019 hearing before the undersigned Veterans’ Law Judge that he did not recall having a hearing evaluation at separation from service. Further, the Veteran contends that his hearing loss is due to service and his hearing loss may have been gradual and worsened slowly over time. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms after service, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a diagnosis of a bilateral hearing loss disability that began during service, manifested during the applicable presumptive period or whether continuity of symptomology has existed since service, or is at least as likely as not caused by an in service, injury or disease. The Veteran has a diagnosis of a bilateral hearing loss. The Veteran’s service treatment records (STRs) and service personnel records have been associated with the claims file. The Veteran’s DD 214 notes his military occupational specialty (MOS) was a light weapons infantryman, with service in the Republic of Vietnam and was awarded the Combat Infantry Badge and the sharpshooter M14 badge. At entrance on the audiological evaluation in February 1967, pure tone thresholds, in decibels were as follows: February 1967 HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 0 (10) x 0 (5) LEFT 15 (30) 0 (10) 0 (10) x 5 (10) Then at separation on the authorized audiological evaluation in January 1970, pure tone thresholds, in decibels were as follows: January 1970 HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) Because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it related to VA examinations and VA records audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standards for evaluating hearing loss were not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385 audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the record data. The Veteran’s in-service audiograms have been converted to ISO-ANSI standard above, in light of the uncertainty, and these values are reflected above in parenthesis. Further, STRs note at separation in January 1970 on the report of medical examination clinical evaluation of the ears was normal. At separation in January 1970 on the report of medical history the Veteran denied hearing loss, running ears and ear trouble. In light of the Veteran’s consistent statements and the evidence of record regarding his duties as a light weapons infantryman including in-service noise exposure from service in Vietnam with exposure to heavy artillery fire and mortar attacks the Board finds credible evidence indicating an in-service injury. As such the Board concedes in-service noise exposure. The question for the Board is whether the Veteran’s bilateral hearing loss began during service or is caused by service. The Veteran was afforded a VA examination in January 2013. On the audiological evaluation in January 2013, pure tone thresholds, in decibels were as follows: January 2013 HERTZ 500 1000 2000 3000 4000 Avg RIGHT 10 10 5 40 60 29 LEFT 10 5 10 35 70 30 Speech audiometry revealed speech recognition ability was 96 percent in the right ear and 96 percent in the left ear. The examiner noted that use of speech discrimination scores was appropriate for the Veteran. Bilateral sensorineural hearing loss was noted. The examiner noted review of the Veteran’s claims file. The examiner found that it is less likely than not that the Veteran’s hearing loss was caused by or a result of an event in service. The examiner noted the Veteran’s in-service noise exposure and that he received the Combat Infantry Badge and his MOS had a high probability of noise exposure. The Veteran reported exposure to rifle fire, machine gun fire, grenades, artillery fire, aircraft and naval batteries. At entrance to service the Veteran’s hearing was within normal limits bilaterally. At separation in January 1970 the Veteran’s hearing was within normal limits bilaterally. Comparing the enlistment and separation examinations, no threshold shifts greater than 10 decibels were present. As such based on the separation audiological examination which noted hearing within normal limits and no threshold shifts bilaterally the Veteran’s current hearing loss is less likely than not due to his in-service noise exposure. The Veteran reports that his hearing loss impacts his ordinary conditions of daily life in that he has difficulty hearing others and understanding others especially in noisy environments. Then, the Veteran was afforded a VA examination in February 2020. On the audiological evaluation in February 2020, pure tone thresholds, in decibels were as follows: February 2020 HERTZ 500 1000 2000 3000 4000 Avg RIGHT 20 20 15 45 65 36 LEFT 20 20 20 45 75 40 Speech audiometry revealed speech recognition ability was 100 percent in the right ear and 96 percent in the left ear. The examiner noted that the use of the speech discrimination scores was appropriate for the Veteran. Bilateral sensorineural hearing loss was noted. The examiner noted no positive threshold shift greater than normal measurement variability at any frequency during service between 500 Hertz and 6000 Hertz bilaterally. The examiner noted that in-service audiograms from February 1967 at entrance and then at separation in January 1970 that the Veteran’s hearing was within normal limits for both ears. The examiner noted an extensive review of the claims file and the Veteran’s contentions and reports of exposure to hazardous noise in-service and combat infantry, small arms fire, grenade launches, artillery, mortars and helicopters engines. Post-military the Veteran reported no noise exposure. Further, the examiner noted a thorough review of the Veteran’s claims file and his lay statements and found that there is no evidence of hearing loss in either ear during active service. The examiner noted that the Veteran’s hearing loss impacts his ordinary conditions of daily life in that he has trouble hearing in conversations and the television. The examiner found that it is less likely than not that the Veteran’s current hearing loss was incurred in or caused by the claimed in-service injury, event or illness. The Veteran’s in-service hazardous noise exposure and exposure to combat including infantry, small arms fire, grenade launches, artillery, mortars and helicopter engines was taken into consideration. However, the examiner found that in-service the Veteran’s hearing was within normal limits bilaterally at both entrance and separation from service. Further, there is no evidence of hearing loss in either ear during active service, and as such, his current hearing loss did not begin during active service. The examiner found that there is no evidence that the Veteran’s current hearing loss manifested within the applicable presumptive period after discharge from service or is related to service. A private opinion from October 2020 has been associated with the claims file. The private opinion was signed by the president of a hearing aid service; he indicated that he held the degree of Master of Business Administration. He noted that audiometric thresholds show normal to severely sloping sensorineural hearing loss bilaterally that is indicative of noise induced hearing loss. The Veteran reported that he was exposed to noise during service. The president offered his professional opinion that it is at least as likely as not that his hearing loss is related to noise exposure while serving in active duty. The Board finds this private opinion is entitled to less probative weight, and the opinion failed to provide a thorough and reasoned rationale for the conclusions reached, and fully address the entirety of the evidence of record. The Board has considered the private opinion but finds such is entitled to less probative weight. VA and private treatment records have been associated with the claims file. A review of these records shows that the Veteran’s earliest self-reporting of hearing loss symptomology began in March 2008, the Veteran reported hearing trouble in private treatment records. VA treatment records in August 2011 note hearing aids were recommended for the Veteran’s hearing loss. These treatment records do not contradict the VA examinations and are absent indications between the Veteran’s current hearing loss disability and in-service disease or injury. The Board has considered the Veteran’s and his representative contentions specifically February 2021 correspondence broadly suggesting service connection is warranted based on the Veteran’s conceded exposure to hazardous noise. However, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran’s representative is not competent to provide a medical opinion. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran’s claim that does little more than suggest a possibility that his illnesses might have been caused by service or a service connected disability is insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. After consideration of all the evidence of record the Board finds that the evidence is against finding that service connection for the Veteran’s bilateral hearing loss disability is warranted. The Board concludes that service connection is not warranted on a direct basis as the Veteran’s current hearing loss was not caused by service. The Veteran’s reports of the onset of his hearing loss in-service warrant low credible and probative weight as they are not consistent with the STRs at discharge from active duty when clinical evaluation of the ears was normal, and his audiogram was within normal limits. While the Veteran reported that his current hearing loss is related to service, and began during service, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence of record including specifically the February 2020 VA examination is entitled to significant probative weight. The examiner noted the Veteran’s reports of exposure to hazardous noise in-service and combat infantry, small arms fire, grenade launches, artillery, mortars and helicopters engines. Post-military the Veteran reported no noise exposure. Further, the examiner noted a thorough review of the Veteran’s claims file and found that there is no evidence of hearing loss in either ear during active service. The examiner found that it is less likely than not that the Veteran’s current hearing loss was incurred in or caused by the claimed in-service injury, event or illness. The Veteran’s in-service hazardous noise exposure and exposure to combat including infantry, small arms fire, grenade launches, artillery, mortars and helicopter engines was taken into consideration. However, the examiner found that in-service the Veteran’s hearing was within normal limits bilaterally at both entrance and separation from service. Further, there is no evidence of hearing loss in either ear during active service, or evidence of a positive threshold shift greater than normal measurement variability at any frequency, and as such his current hearing loss did not begin during active service. The examiner found that there is no evidence that the Veteran’s current hearing loss manifested within the applicable presumptive period after discharge from service. The Board finds that the VA opinion thoroughly considered the Veteran’s lay statements and claims file and provided a thorough and well-reasoned opinion. As such the Board finds this opinion is entitled to significant probative weight. Further, the Board has considered the Veteran’s audiogram in-service and as it is unclear whether such thresholds were recorded using ASA units or ISO-ANSI. The Board has considered the Veteran’s in-service audiograms under both standards, ASA units and ISO-ANSI units relying on the unit most favorable to the Veteran’s appeal. The Board has also considered the Veteran’s general contention that he does not believe he had an audiogram at separation, however there is no evidence to support such. However, regardless as the VA examiner in February 2020 noted there is no indication that a hearing loss disability was present in service, as defined by VA. Even with consideration of and converting to ISO-ANSI the Veteran did not have a hearing loss disability for VA purposes at entrance or separation. Further, there was no positive threshold shifts regardless of consideration under ASA units or ISO-ANSI units during service. Further the Board notes that the Veteran did not have significant positive threshold shifts in service, any threshold shifts were minimal and do not indicate a hearing loss disability was present in service for VA purposes. The Board finds that direct service connection is not warranted as the Veteran’s current hearing loss is not caused by service. The Board notes that the STRs note at separation in January 1970 on the report of medical examination audiological testing was within normal limits and clinical evaluation of the ears was normal. Further, at separation on the report of medical history the Veteran denied hearing loss, running ears or ear trouble. The Board has considered the Veteran’s lay statements however, the Board gives more probative weight to the competent medical evidence. In addition, the Board has considered the October 2020 private opinion but finds that such is outweighed by the medical evidence of record, specifically the February 2020 VA examination. At separation clinical evaluation was normal, and the Veteran’s hearing was within normal limits. As such the Board finds the Veteran’s current hearing loss disability is less likely than not related to active service. As to presumptive service connection the Veteran’s bilateral hearing loss did not manifest until many years post-service. The Board concludes that while the Veteran has sensorineural hearing loss, which falls within a chronic disease under 38 U.S.C. § 1101 (3)/38 C.F.R. § 3.309(a), however such was not chronic in service nor did these manifest to a compensable degree in service or within the presumptive period, and continuity of symptomatology is not established. The Veteran’s hearing loss was not noted during service or within one year of separation. See Walker, 708 F.3d 1331. At separation on the report of medical examination in January 1970 clinical evaluation of the ears was normal. Service records do not support an onset of the Veteran’s hearing loss in active service. Based on the probative evidence of record the Board finds that the Veteran’s hearing loss did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. Private treatment records note difficulty hearing in 2008 which was 38 years after his separation from service in 1970. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a bilateral hearing loss disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.