Citation Nr: 21012833 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-44 474 DATE: March 5, 2021 ORDER Service connection for right ear hearing loss is denied. FINDING OF FACT Right ear hearing loss was not incurred in service, did not onset within one year of separation, and is not otherwise related to the Veteran’s active duty service. CONCLUSION OF LAW Right ear hearing loss was not incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1963 to July 1967, including foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. Historically, this appeal was denied by the Board in November 2018. However, the Court of Appeals for Veterans Claims (CAVC) vacated this denial and remanded the matter for further consideration in a May 2020 Memorandum Decision. The Board then remanded this issue in December 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Briefly, the Veteran’s former representative revoked his power of attorney in December 2020. See also January 2021 electronic correspondence. A confirmation letter was sent to the Veteran in January 2021, and he did not subsequently express his intent to have the former representative retain his power of attorney status or appoint a different representative. Thus, the Veteran continues in this appeal unrepresented. See 38 C.F.R. § 20.608. Service Connection The Veteran now continues his appeal seeking direct service connection for right ear hearing loss. The Board will limit its analysis accordingly. Generally, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. There is competent evidence of such a disability in this case. Notably, the Veteran underwent VA audiological examination in February 2014, which yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 30 30 A speech discrimination scores of 92 percent was recorded for the right ear. These results establish right ear hearing loss per VA regulations, such that the first element of direct service connection has been met. As to the second element, the Regional Office (RO) conceded the Veteran’s in-service noise exposure in an October 2008 rating decision (awarding service connection for left ear hearing loss). The Board finds no good cause to disturb the RO’s finding in this respect, particularly given the Veteran’s in-service specialty as an aircraft mechanic (which has a high probability of in-service noise exposure) and his competent and credible testimony of related noise exposure. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also September 2008 and April 2014 VA examinations (detailing in-service noise exposure due to aircraft maintenance, jet engines, and occasional bombings). Thus, the second element of direct service connection has also been met. However, the evidence weighs against the finding of a causal nexus between the Veteran’s current right ear hearing loss and his in-service noise exposure. In this respect, the Board acknowledges that the claims file contains an April 2014 VA negative nexus opinion. However, this opinion was deemed inadequate by the Court in its May 2020 Memorandum Decision, which provided a basis for the Board’s December 2020 remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, this opinion does not merit further consideration herein. Nonetheless, a VA negative addendum opinion was provided in December 2020. Therein, the examiner confirmed that the Veteran demonstrated a “mild to moderately severe high frequency sensorineural hearing loss in the right ear” at the time of the April 2014 examination. In assessing a possible nexus, the examiner reported that she had reviewed Bekesy tracings and prescribed audiograms from the Veteran’s service. In doing so, she clarified as to what would constitute a “significant threshold shift” in accordance with the VA Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations, before concluding that such a threshold shift was not observed in the Veteran’s right ear during service as shown by objective readings. Thus, although noise exposure was conceded in this case, the Veteran had normal hearing in the right ear with no significant threshold shift throughout his military service. Accordingly, a nexus was not asserted at that time. This opinion is probative evidence against the claim, as the examiner clearly considered such factors as the observable right ear threshold shift during service, the Veteran’s in-service noise exposure, and the standards for assessing such claims in accordance with the VA Handbook. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the “factually accurate, fully articulated, sound reasoning for the conclusion”). There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in providing the above nexus opinion. Moreover, she possesses the requisite expertise to render a medical opinion regarding the etiology of the claimed disorder and had sufficient facts and data on which to base her conclusions, and there is no competent opinion which tends to contradict her findings. Notably, the December 2020 addendum opinion also directly comports with the Board’s remand directives of that same month. In contrast, the Veteran asserts that a nexus exists between his right ear hearing loss and his military service. However, he lacks the requisite training and expertise to offer a competent opinion regarding the etiology of the claimed condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. As such, greater probative value is afforded to the medical evidence in concluding that a nexus is not present with respect to this appeal. As the third and final element of direct service connection has not been met, the appeal cannot succeed. The Board has also considered whether this appeal may be granted due to chronicity of symptoms. 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). However, the claims file is silent for evidence that the Veteran’s right ear hearing loss onset within one year of separation and has persisted since that time. Thus, presumptive service connection does not apply to this appeal. Id. Accordingly, the preponderance of the evidence is against the claim such that the benefit-of-the-doubt rule is not applicable, and the claim seeking service connection for right ear hearing loss is denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.