Citation Nr: 21011895 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-41 148 DATE: March 3, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s hearing loss was not shown as chronic in service, did not manifest to a compensable degree within the one year of separation from service, and is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to January 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. The Board remanded the claim in December 2020, in addition to the issue of service connection for tinnitus. In a January 2021 rating decision, the RO granted service connection for tinnitus; this constitutes a full award of the benefits sought on appeal with respect to the claim for tinnitus. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service connection for bilateral hearing loss is denied. The Veteran asserts his hearing loss is due to noise exposure in service. The Veteran testified that he was exposed to loud noises while working in close proximity to the flight deck for four hours each day in service. The Veteran also testified that he experienced diminished hearing in his left ear during service or at separation, and his hearing loss has progressively worsened since service. For the reasons that follow, the Board finds that service connection is not warranted. Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including sensorineural hearing loss as an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; see Fountain v. McDonald, 27 Vet. App. 258, 264 (2015). Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the following frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at the above thresholds 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 (2016). Initially, the Board will consider whether there has been substantial compliance with its December 2020 Remand directive. In the December 2020 Remand, the Board directed the AOJ to schedule the Veteran for a VA examination regarding the nature and etiology of his claimed hearing loss. VA obtained a nexus opinion in January 2021. The examination report shows that the VA facility prohibited in-person examinations, presumably due to the pandemic. As a result, the opinion was obtained in conjunction with a review of the claims file and the testimony from the November 2020 hearing. The examiner also noted that an in-person examination would not provide a different opinion; implicitly, an opinion could be provided without an examination. Given the circumstances, the Board finds that there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Turning to the evidence of record, the claims file does not contain evidence indicating any hearing loss disability had onset during service, or to a degree of 10 percent or more, within a year of discharge from service. In-service audiometric testing in the October 1965 P1 examination and the January 1970 separation examination showed hearing within normal limits without threshold shift. Although the Veteran reports that his hearing loss had onset in service, he does not possess the requisite medical training or expertise to make such complex medical determinations to diagnose a hearing loss disability for VA compensation purposes or offer an etiological determination for such. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the contemporaneous clinical findings during service outweigh his lay assertion in that regard. As noted, a VA opinion was obtained in January 2021. The VA examiner was able to review the claims file and the Veteran’s service records. The examiner considered the Veteran’s testimony that he had hearing loss during service. Nonetheless, the examiner offered an unfavorable etiology opinion regarding the current hearing loss and the Veteran’s in-service noise exposure. She explained that the Veteran had audiological testing in October 1965 and at separation in January 1970 and both tests were normal. The examiner also noted that there is no evidence in the current literature to suggest delayed onset of hearing loss. In doing so, the examiner referenced the Institute of Medicine report on “Noise and Military Service: Implications for Hearing Loss and Tinnitus” but noted that she found no contradictory aspect in this report. She explained that the comparison of audiograms prior to service and at separation showed no change in hearing sensitivity or significant threshold shifts, and hearing was also normal at discharge. The examiner also noted that there is no evidence that the Veteran’s military noise exposure caused a permanent noise injury affecting hearing sensitivity and for these reasons it is less likely than not that his current hearing loss is due to service. The Board finds the January 2021 nexus opinion probative because the examiner considered the history of the disability, the Veteran’s relevant lay statements and relevant information regarding noise exposure. In forming her conclusion, the examiner only partially relied on the findings of the IOM report. While there are contradictory aspects to the IOM’s report, a medical text’s qualifying or contradictory aspects” as only one factor on a non-exhaustive list that is relevant to the Board’s evaluation of the probative value and adequacy of a medical opinion. The examiner (an audiologist) relied on sufficient facts and data; provided a factually accurate, fully articulated, and sound rationale for the conclusion reached; and the opinion was the product of the application of reliable principles and methods reliably to facts of this specific case. Therefore, the Board finds the opinion is adequate. There is no other medical opinion in the record regarding the likely etiology of the Veteran’s current hearing loss. Moreover, there is no competent and probative evidence showing the current hearing loss disability manifested to a degree of 10 percent or more within a year of discharge from service. To the extent that the Veteran reports he noticed hearing loss in service and that it has progressively worsened since discharge, the VA nexus opinion outweighs any lay assertion that his current disability is related to service. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). The preponderance of the competent medical evidence demonstrates a current hearing loss disability is not due to military service. Accordingly, there is no reasonable doubt to be resolved in this instance. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service connection for a bilateral hearing loss disability is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.