Citation Nr: 21011484 Decision Date: 03/02/21 Archive Date: 03/01/21 DOCKET NO. 15-41 005 DATE: March 2, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. FINDING OF FACT A bilateral hearing loss disability is not shown to have had its onset in service, was not manifested to a compensable degree within one year of service discharge, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from October 1974 to September 1977. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in October 2018. A transcript of the hearing was prepared and associated with the claims file. The Board issued a decision denying the claim for entitlement to service connection for bilateral hearing loss in March 2019. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) with respect to the March 2019 Board decision, to vacate and remand the claim back to the Board, which was granted by the Court. Subsequently, the Board remanded the claim in March 2020 for further development in accordance with the JMR. VA provided the Veteran with an examination and obtained a medical opinion. In September 2020, a supplemental statement of the case was issued by the Department of Veterans Affairs (VA) Regional Office (RO) denying the claim for entitlement to service connection for bilateral hearing loss. The claim now returns to the Board for further proceedings. A claim for service connection for tinnitus was part of the current appeal, but in a September 2020 rating decision, the RO granted service connection for tinnitus. Thus, that issue is no longer part of the current appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Where a Veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, which is an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Sensorineural hearing loss and tinnitus are chronic diseases. Under VA regulations, hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Entitlement to service connection for a bilateral hearing loss disability The Veteran contends that his bilateral hearing loss was caused by hazardous noise exposure in service. He states that since he was exposed to hazardous noise in service and now has hearing loss, that he should be given the benefit of the doubt that his bilateral hearing loss was caused by the noise exposure in service. In his July 2015 notice of disagreement, the Veteran asserted that when he worked at the Airman’s Club during service, he was exposed to loud noise from musicians that frequently performed there. The Veteran also asserted that he spent a lot of time on the golf course, where he was exposed to loud noise from planes taking off and landing at a nearby airport. On his November 2015 VA Form 9, Appeal to the Board, the Veteran made similar assertions. The Veteran was afforded a Board hearing in October 2018. At this hearing, the Veteran testified that he worked at the Airman’s Club maintaining peace and order during concerts, where he was close to loud music about every two weeks when the concerts were held. The Veteran reported that sometimes he had to step away or go upstairs where it was quieter to escape the noise for a moment because his ears were ringing or thumping. The Veteran testified that he experienced some continuous ringing the next day after these concerts, but that the ringing was not constantly ongoing. The Veteran also testified that he first noticed that he had hearing loss when he was on the golf course, and he had a hard time hearing the commander speaking to him. He further testified that planes flew over the golf course, exposing him to additional hazardous noise because the runway was very close to the golf course. The Veteran also testified that he must occasionally ask people to repeat themselves or read lips in order to determine what they are saying. In a January 2021 brief, the Veteran’s representative stated that although the August 2020 VA examiner had findings that were not in favor of the Veteran, the Board cannot ignore lay statements given by the Veteran in support of his claim. The Veteran’s representative noted “[i]f all fingers point to events that occurred in service as the causative factor of a disability, then pursuant to 38 C.F.R. § 3.303(d) the condition must be service connected in the absence of some other intercurrent cause of the impairment.” See January 21, 2021 Appellate Brief. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for bilateral hearing loss disability on both direct and presumptive bases. The reasons follow. The Veteran has been diagnosed with bilateral hearing loss disability in an August 2020 VA examination in accordance with VA regulation, see 38 C.F.R. § 3.385, and thus there is evidence of a current disability, and the facts establish that the first element of a service-connection claim is met. Regarding an in-service disease or injury, the Board finds that the preponderance of the evidence is against a finding of an in-service disease or injury relating to a bilateral hearing loss disability. For example, the Veteran’s service treatment records document that he declined a medical examination in September 1977 at separation from service. The Veteran was afforded an audiogram in August 1974 at entrance into service, and checked “No” to the question “Have you ever had or have you now hearing loss.” Additionally, A March 1975 Physical Profile Serial Report reflects that a “1” was assigned under H for hearing under the PULHES system, which represents that the Veteran’s hearing was at a high level of fitness. The Veteran served as a recreation services specialist during service, a military occupational specialty (MOS), which carries a low probability of hazardous noise exposure. In the Veteran’s service performance report that covered the period from October 1974 to May 1976, it shows the Veteran’s job was described as operating checkout counter, preparing and conducting programs, operating required equipment and making hourly head count, maintaining routine operational procedures, forms, and reports, and assisting with maintaining facility and grounds. The performance report from May 1976 to November 1976 documents similar duties. These duties do not support a finding of excessive noise exposure during service. Thus, the preponderance of the evidence is against a finding of an in-service disease or injury. The parties to the October 2019 JMR found that the Board erred by failing to ensure VA satisfied its duty to assist to provide an adequate examination or medical opinion. 38 U.S.C. § 5103A(d)(1) (2018); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the parties stated the Board erred when it relied on the June 2015 VA medical opinion authored by an audiologist who did not review the Veteran’s claims file. As a result, the Board will not consider that medical examination or opinion. The Veteran was afforded a VA audiological examination in August 2020 in compliance with the November 2019 JMR and the VA’s duty to assist to provide an adequate examination and medical opinion, and in consideration of Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). The August 2020 examiner reviewed the Veteran’s file and noted the Veteran’s assertion that aircraft would occasionally fly overhead while he was on a golf course, and his assertion that rock bands played loudly at the Airman’s Club that made it difficult to hear. The examiner opined that the Veteran’s hearing loss disability was less likely than not related to military noise exposure because his work as a recreation services specialist did not expose him to noise levels capable of causing permanent hearing loss. The VA examiner also noted hearing testing was not conducted at separation from service and the Veteran denied any hearing difficult at that time. The Board finds the August 2020 VA opinion is highly probative, as the examiner had reviewed the file, examined the Veteran, and provided an opinion that was based upon the facts of the Veteran’s case, which is that he reported being exposed to in-service noise, and the examiner did not find that such noise exposure caused the current bilateral hearing loss disability. This is evidence against a nexus between the current disability and service. The Veteran has not submitted competent evidence upon which to weigh against the August 2020 opinion. Thus, two of the three elements needed for service connection are not met. The Veteran was afforded the opportunity to submit additional evidence associated with the claim for entitlement to bilateral hearing loss. See April 1, 2020 Subsequent Development Letter. As noted in the September 2020 supplemental statement of the case, the Veteran did not submit any additional evidence. The Board understands the Veteran’s belief that his exposure to loud music while working at the Airman’s Club and loud noise on the golf course during service caused his current hearing loss disability. However, the VA examination findings, service treatment records, and other evidence of record do not document findings that would cause the undersigned to conclude that the Veteran’s current bilateral hearing loss disability had its onset during service or is otherwise related to service. There is no competent evidence establishing that the Veteran’s current bilateral hearing loss disability either had onset during service or is otherwise related to service. The Board acknowledges the Veteran’s assertions that his bilateral hearing loss disability is related to active service. The Veteran is qualified to state that he has experienced hearing loss. However, to the extent that the Veteran attempts to assert a nexus between his bilateral hearing loss disability and noise exposure during service, he is not competent to directly link the current bilateral hearing loss disability to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. The Board considered the Veteran’s representative’s statement "[i]f all fingers point to events that occurred in service as the causative factor of a disability, then pursuant to 38 C.F.R. § 3.303(d) the condition must be service connected in the absence of some other intercurrent cause of the impairment.” See January 21, 2021 Appellate Brief. This statement is inapplicable to the current claim. Contrary to the representative’s assertions, there is little in the evidence to point to events that occurred in service as the causative factor of the Veteran’s bilateral hearing loss disability. In fact, the majority of the evidence weighs against a finding of service as the causative factor of the Veteran’s disability. As previously detailed, the August 2020 VA examiner found the Veteran’s bilateral hearing loss disability was less likely than not related to service, the service treatment records showed no evidence of hearing loss, and the Veteran’s MOS and job description within his performance reviews do not lend to a finding of hazardous in-service noise exposure. Additionally, there were no complaints, diagnosis, or treatment for this disability for approximately 37 years following service discharge until the Veteran first submitted a claim for benefits for a bilateral hearing loss disability in March 2015. This absence of post-service complaints, findings, diagnosis, or treatment for approximately 37 years after service is one factor that tends to weigh against a finding that the Veteran’s disability was caused by his service. The other factor is the lack of in-service evidence of hazardous noise exposure. Regarding presumptive service connection, there is no competent evidence that sensorineural hearing loss manifested to a compensable degree within one year of the Veteran’s discharge from service. See 38 C.F.R. §§ 3.307(a), 3.309(a). Although the Veteran reported at his October 2018 hearing that he first noticed the onset of his hearing loss on the golf course during service, the Veteran is not competent to diagnose a hearing loss disability (versus reporting hearing loss), as he has not been shown to possess the necessary medical expertise or training to render a complex medical diagnosis. Furthermore, the evidence of record does not demonstrate that the Veteran’s symptoms have been continuous since separation from service in September 1977. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). There were no complaints, diagnosis, or treatment for this disability for approximately 37 years following service discharge until the Veteran first submitted a claim for benefits for a bilateral hearing loss disability in March 2015. The absence of post-service complaints, findings, diagnosis, or treatment for approximately 37 years after service is one factor that tends to weigh against a finding of continuous symptoms since separation from service. The Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence. A prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. As such, service connection is not warranted on a presumptive basis. In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran’s claim for service connection for bilateral hearing loss disability. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton 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.