Citation Nr: 21013275 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-25 439 DATE: March 9, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that Veteran’s left ear hearing loss began during active duty, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 101, 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to May 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision from a Department of Veteran’s Affairs (VA) Regional Office (RO) denying entitlement to service connection for bilateral hearing loss. The Veteran disagreed and timely perfected his appeal of the December 2013 decision. The claim was then remanded by the Board in May 2018, January 2019, and January 2020 for further development. While on appeal in January 2020, the RO granted service connection for right ear hearing loss in an October 2020 rating decision. As a result, the only issue currently before the board is left ear hearing loss, no other issues will be discussed further. 1. Entitlement to service connection for left ear hearing loss The Veteran contends that his current left ear hearing loss is a result of his military occupational specialty (MOS) as an aircraft maintenance specialist that began in service. See DD 214 (received 12/22/2013). Service connection is established on a direct basis when there is competent, credible, evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease of injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Where a Veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of active duty, 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted if symptoms are shown to be continuous since service for these diseases. 38 C.F.R. § 3.303(b). 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 frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Analysis As stated above, the first element to service connection requires a current disability. At a November 2013 VA examination, the Veteran demonstrated threshold losses meeting the criteria for a diagnosis of with sensorineural hearing loss in the left ear under 38 C.F.R. § 3.385. As a result, the first element of service connection is met. The next element requires an in-service incurrence or aggravation of an injury or disease. The Veteran asserts his hearing loss is a result of his MOS as an aircraft maintenance specialist. He further contends that the audiograms in his service treatment records show a pattern of hearing loss while in service resulting from noise exposure incurred while performing the duties of his position as an aircraft maintenance serviceman. The Board notes these assertions; however, service treatment records do not reflect any diagnosis or treatment for left ear hearing loss while in service. As explained by the October 2020 examiner, the difference between the entrance and separation examination do not show a significant decrease in hearing acuity. While there is some change between the December 1981 audiogram and the April 1984 audiogram, these results do not meet the requirements of left ear hearing loss for VA purposes. See 38 C.F.R. § 3.385. Notwithstanding the above, the October 2020 VA examination report reflects the examiner’s statement the Veteran’s MOS has a high probability for hazardous noise exposure. The Board views this evidence in a similar light, and thus, in-service exposure to excessive noise is conceded, fulfilling the second element of service connection has been met. The record does not reflect that the Veteran’s bilateral hearing loss began in service nor did he report continuous symptoms of hearing loss since active-duty service. The evidence does not show continuous symptoms of left ear hearing loss since service. Thus, service connection is not warranted on the basis of continuity of symptomatology. 38 C.F.R. § 3.303(b). As such, the Veteran’s appeal may only succeed if the most probative medical nexus evidence reflects that his left ear hearing loss is the result of his conceded in-service exposure to excessive noise. To the above point, the record includes several medical nexus opinions, some of which the Board has previously determined to be inadequate for various reasons – necessitating the Board’s prior remands, noted above. Nonetheless, the Board will recount these opinions, in turn. The Veteran was provided a VA examination in November 2013, and after completing audiometric testing, the examiner stated that the Veteran’s left ear hearing loss was not due to his active service as both the entrance and separation examination showed his hearing to be within normal limits. He further stated that the Veteran’s record did not show a complaint or treatment for hearing loss until many years after service. This nexus opinion was deemed inadequate by the May 2018 Board remand due to the examiner’s reliance on a lack of hearing loss for VA purposes while in service. The Veteran was afforded an additional VA examination in August 2014, and again, the Veteran opined that the Veteran’s left ear hearing loss was less likely as not due to his in-service noise exposure based on the Veteran’s demonstration of normal hearing at service entrance and separation. Again, this opinion is found to be inadequate for the same reason as the November 2013 VA opinion. The Veteran was afforded another VA examination in September 2019, and the examiner stated there was no nexus, or link, between the Veteran’s left ear hearing loss and his active duty service. The examiner stated that the Veteran’s hearing loss at entry and separation were within normal hearing limits. Again, this medical opinion was deemed inadequate by the January 2020 Board remand. Finally, the Veteran was provided a VA examination in October 2020. Here, the examiner, again, tested all of the relevant frequencies and the Veteran was shown to have sensorineural hearing loss for VA purposes in his left ear. However, the examiner concluded that the Veteran’s left ear hearing loss was not related to his active duty service. The examiner indicated that the shift in hearing from entrance to separation does not indicate a significant decrease in hearing acuity while in service. The examiner further stated that, “it is well known that noise induced hearing loss does not have a delayed onset.” In support of these conclusions, the examiner cited to medical literature that indicates, based on the “anatomical and physiological date available on the recovery process following noise exposure” a delayed onset in hearing loss is unlikely. The Board finds this opinion highly probative of the matter forming the crux of the Veteran’s appeal, as the opinion cites to evidence within the file and is supported by rationale congruent with sound medical principles. Bloom v. West, 12 Vet. App. 185, 187 (1999). (Continued on the next page)   The only evidence contrary to the unfavorable, but competent and credible October 2020 VA examiner’s opinion emanates from the Veteran. The Board acknowledges the Veteran’s contentions; however, as held by the Court in Layno v. Brown, 6 Vet. App. 465, 469 (1994), the Veteran is competent to discuss his symptoms of left ear hearing loss, but he has not shown that he has the medical training, experience, or expertise to be medically competent to provide a medical etiology opinion connecting his current bowel condition to atomic radiation exposure. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that relationship between noise exposure and left ear hearing loss many years later is too complex to be addressed by a layperson. This diagnosis is not amenable to observation alone. Rather it is a medically complex issue requiring specialized medical training, such as that possessed by the VA examiner. See 38 C.F.R. § 3.159(a)(1). Hence, the Veteran’s opinion, no matter how sincere, is not competent nexus evidence. Therefore, the Board concludes that the most probative evidence reflects that the Veteran’s left ear hearing loss is less likely as not proximately due to or the result of his conceded in-service noise exposure. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the appeal is denied. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.