Citation Nr: 21011898 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-03 941 DATE: March 3, 2021 ISSUE Entitlement to service connection for bilateral hearing loss disability (BHL). ORDER Entitlement to service connection for BHL is denied. FINDING OF FACT The competent evidence shows that BHL manifested more than one year after separation from service and is not otherwise related to service. CONCLUSION OF LAW BHL was not incurred in or aggravated by service and such service incurrence may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1962 to April 1966. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that in a July 2016 notice of disagreement, the Veteran disagreed with the denial of entitlement to service connection for a left shoulder scar and raised the issue of entitlement to an increased rating for his service-connected osteoarthrosis of the left shoulder with partial tear of rotator cuff. Subsequently in a November 2016 rating decision, the RO granted service connection for the left shoulder surgical scar but did not adjudicate the claim for an increased rating. As such, the issue of entitlement to an increased rating for the left shoulder has been raised by the Veteran in a July 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the increased rating claim, and the issue is again referred to the AOJ for appropriate action. When this case was most recently before the Board in November 2020, it was remanded for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Legal Criteria Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). To establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). For veterans who served on active duty continuously for 90 days or more during a period of war or after December 31, 1946, service connection may be awarded on a presumptive basis for certain listed “chronic” diseases in 38 C.F.R. § 3.309 (a) that manifest to a compensable degree within a prescribed time period. 38 U.S.C. §§ 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). With respect to claims for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Analysis In this case, VA examinations show BHL per VA regulations. 38 C.F.R. § 3.385. Therefore, Hickson element (1) is met. With respect to Hickson element (2), in-service disease or injury, the Veteran contends that he had noise exposure in service from working on the flight line in service around jet engines as an aircraft mechanic. Service personnel records show that the Veteran was an airman basic. Therefore, Hickson element (2) is met. The Veteran was afforded a VA examination in November 2011 in which the examiner opined that the BHL was not at least as likely as not caused by or a result of an event in military service. The examiner stated that due to having normal hearing at all frequencies from 500 to 6000 Hertz at the exit examination in February 1966, it was less likely as not that the Veteran’s hearing loss was caused by military noise exposure. The RO obtained an addendum VA opinion in June 2019 in which the examiner outlined the Veteran’s enlistment examination, 1963 and 1965 service examinations, and separation examination. The examiner opined that it was less likely than not that the Veteran’s current hearing loss was because of military noise exposure as his separation examination provided documentation of very normal hearing sensitivity that was unchanged from his entrance hearing examination. The Veteran was afforded a VA-contracted examination in July 2020 in which the examiner stated that his entrance examination consisted only of a whispered and spoken voice test; this test did not provide reliable, calibrated, frequency-specific information regarding hearing sensitivity, and was not reliable evidence of normal hearing or hearing impairment. Therefore, the examiner stated that the Veteran’s hearing status at time of military entrance was unknown; however, several in-service examinations including the exit examination showed hearing well within normal limits. The examiner stated that it could be concluded that hearing was within normal limits at time of military entrance as well. The examiner stated that because the exit examination showed hearing well within the normal hearing range, bilateral, it was unlikely any significant threshold shifts occurred during active duty. The examiner stated that there was no objective evidence to support a claim of military related noise injury even though noise exposure was reported. The examiner stated that the available service treatment records were silent for any complaint, diagnosis, or treatment of the claimed condition. The examiner stated that based on the available evidence, the Veteran’s hearing loss was less likely than not a result of military noise exposure. In response to the Board’s remand, an addendum VA-contracted opinion was obtained in December 2020 in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner outlined pertinent service examinations and the Veteran’s contentions. The examiner opined that there was no objective evidence (i.e. service audiometric results) to support the claim of military related noise injury (i.e. noise induced hearing loss), even though noise exposure was reported. The examiner stated that available service treatment records were silent for any complaint, diagnosis, or treatment of the claimed condition. The examiner opined that based on the available evidence, the Veteran's hearing loss was less likely than not a result of military noise exposure. In light of the above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s BHL is related to his active service, and the claim must be denied. In this case, as to the issue of the etiology, the Board finds that the VA examiners found that there was no evidence that the BHL had onset in service or was related to service. The Board finds that the December 2020 VA-contracted opinion to be the most probative evidence of record as it was based upon a review of the claims file and rationale was provided. The Board notes that medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Accordingly, the Board concludes that the VA opinion carries significant weight. No other competent opinion providing a positive nexus between the BHL and service has been presented. The Board also finds the preponderance of the evidence weighs against finding that BHL manifested in-service or to a compensable degree during the first year after service. As such, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. The Board acknowledges that the Veteran is competent to testify as to his beliefs that his BHL is related to service. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of his BHL, as such is not readily subject to lay observation. Therefore, the Veteran’s claim is outweighed by the competent and probative medical opinion. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, a nexus cannot be established, and the criteria of Hickson element (3) is not met for this claim. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b) (West 2014). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.