Citation Nr: 21011653 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-30 583 DATE: March 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected rhinitis, is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include the Veteran’s service-connected rhinitis. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to May 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. This matter was remanded by the Board in September 2019. The RO has substantially complied with the Board’s remand directives and this matter is now back before the Board for adjudication. Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected rhinitis, is denied The Veteran claimed entitlement to service connection for bilateral hearing loss due to jet engine noise exposure during his active duty service. He has also claimed that his hearing loss is secondary to his service-connected rhinitis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of bilateral hearing loss as evidenced by an April 2014 VA examination. Hearing loss is an organic disease of the nervous system, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran did not receive treatment for hearing loss until May 2013, 37 years after his separation from service and outside of the applicable presumptive period. The Veteran was discharged in May 1976 by reason of disability due to his perennial rhinitis. The Veteran’s service treatment records and personnel records do not show evidence of hearing loss during service. Although the Board remanded this case to ensure that all service treatment records had been associated with the claims file, there is no separation examination beyond the August 1975 summary of findings for the Medical Board Evaluation, which does not show a diagnosis or complaint for hearing loss. The Board acknowledges that the Veteran’s May 1972 audiogram taken at his enlistment shows some hearing loss at the 6000 Hertz frequency. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). However, the audiogram did not show any hearing loss in the 500, 1000, 2000, 3000, or 4000 Hertz frequencies, which are used to determine whether the Veteran has hearing loss for VA purposes. 38 C.F.R. § 3.385. Furthermore, there are no other audiograms in the Veteran’s service treatment records which show hearing loss, and the Veteran did not report experiencing hearing loss during service. The Board acknowledges the Veteran served as an aviation mechanic and reported that he was exposed to jet engine noise during service. The Board further acknowledges the Veteran’s representative’s argument that the Veteran experienced hearing loss since service. However, the Veteran’s VA treatment records and reports to a VA examiner directly contradict the representative’s assertions. A May 2013 VA treatment note indicates that the Veteran reported that ringing in his ears started 40 years ago, but that record does not indicate when the Veteran’s hearing loss started. In an April 2014 VA examination, the Veteran reported that he first noticed a decrease in hearing sensitivity “a couple of years ago.” The April 2014 VA examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to the Veteran’s active duty service. The VA examiner’s rationale was that the Veteran reported that his hearing loss began a few years ago and that he reported that he wore hearing protection during service. Furthermore, the Veteran reported experiencing a significant amount of noise from postal sorting machines while working for 30 years as a postal clerk, and only reported wearing hearing protection “most of the time” during his employment as a postal clerk. The Board acknowledges that the Veteran has uploaded personal copies of his service treatment records which were not previously associated with the claims file. In the September 2019 remand, the RO was directed to attempt to obtain any outstanding service treatment records and to note in the claims file the reasons for any unavailable records. A November 2019 record indicates that all available service personnel and/or treatment records were uploaded to the claims file in response to an earlier request. In cases where a veteran’s service treatment records are damaged or destroyed through no fault of his own, there is a heightened duty to assist him in the development of the case. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Here, the RO has conducted multiple searches for the Veteran’s service treatment records and has considered those records that are in the claims file. Furthermore, the Board reiterates that, despite the arguments advanced by his representative, the Veteran has not alleged that he suffered hearing loss during service, only ringing in his ears. The Board finds the report of the April 2014 VA examiner to be probative because it is based upon facts supported from the Veteran’s reports and the claims file and has a sound reasoning for the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran is competent to report that he experiences symptoms of ringing in his ears beginning 40 years ago or hearing loss beginning a few years ago, but he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of his currently diagnosed bilateral hearing loss as neither the Veteran nor his representative has demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized education and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Turning now to the Veteran’s claim for secondary service connection, the question for the Board is whether the Veteran’s hearing loss is proximately due to or the result of, or was aggravated beyond its natural progress by, his service-connected rhinitis. The Board remanded this matter in September 2019 to schedule a VA examination to address the Veteran’s contention that his hearing loss is related to his service-connected rhinitis. However, the claims file reflects that the Veteran cancelled the VA examination and did not provide the reason for his cancellation or request to reschedule the VA examination. In November 2020, the Veteran’s representative submitted a brief which also did not provide a reason for the Veteran’s cancellation of the VA examination or request that a new VA examination be scheduled, and instead argued that a new VA examination was not necessary to adjudicate the claim. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (b). Thus, the claim will be considered based on the evidence in the record. The Board concludes that, while the Veteran has a current bilateral hearing loss disability, the preponderance of the evidence is against finding that the Veteran’s hearing loss is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected rhinitis. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). There is no probative medical evidence to support the Veteran’s contention that his hearing loss is related in any way to his service-connected rhinitis, and, as discussed above, the Veteran has not demonstrated that he has the necessary medical expertise to diagnose a hearing loss disability or opine regarding its etiology. Consequently, the Board cannot award service connection on a secondary basis for the Veteran’s hearing loss disability. In sum, the Board finds the preponderance of the evidence shows that the Veteran’s bilateral hearing loss was not present during or for many years after service and is not related to his service, to include any in-service noise exposure. The Board further finds that the Veteran’s hearing loss was not proximately due to or the result of, or aggravated beyond its natural progression by, his service-connected rhinitis. Consequently, there is no doubt to be resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for hearing loss must   be denied. 38 C.F.R. § 3.303. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.