Citation Nr: 21013427 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-45 645 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss 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 in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Army from August 1966 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was last remanded in October 2020 and has since been returned to the Board for appellate review. The Board finds that the VA has substantially complied with the previous remand directives. In December 2020, the VA scheduled the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hearing loss. The VA contacted the Veteran to explain the importance of attending the VA examination. However, the Veteran refused to report to the examination, stating that he did not need the appointment for his bilateral hearing loss claim. Therefore, the VA cancelled the examination and issued a Supplemental Statement of the Case (SSOC). The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). When a claimant fails to report for an examination without good cause shown, the claim shall be considered based on the evidence of record. 38 C.F.R. § 3.655. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303 (b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 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 of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran asserts that he currently has bilateral hearing loss that is related to noise exposure during active service. For reasons that follow, the Board finds that service connection is not warranted. The Veteran has a current bilateral hearing loss disability. For example, at his April 2016 VA examination, auditory thresholds for the Veteran exceeded 40 decibels at 2000, 3000, and 4000 Hz bilaterally. Thus, the remaining question is whether the hearing loss is related to the Veteran’s military service. Initially, the Board concludes that the Veteran’s hearing loss was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records show no complaints, diagnosis, or treatment related to hearing loss. During the June 1969 separation examination, the clinical evaluation of the Veteran’s ears was normal. Moreover, the Veteran’s hearing acuity was evaluated with pure tone thresholds, in decibels of: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 10 LEFT 10 0 0 10 Significantly, in a corresponding report of medical history, the Veteran specifically denied having had hearing loss. The record is negative for medical evidence of bilateral hearing loss disability until approximately 2016, many years after the Veteran’s separation from service and outside the presumptive period. While the Veteran is competent to report experiencing symptoms of hearing loss since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent to his reports in contemporaneous treatment records, which show no reports of hearing loss for many years. Again, the Veteran expressly denied hearing loss at discharge. Moreover, the first evidence of any hearing loss is when the Veteran filed his initial claim in April 2014, decades after his separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board gives more probative weight to competent medical evidence, including the April 2016 VA examinations conducted by the same examiner, which determined that the Veteran’s hearing loss was not due to in-service noise exposure. The examiner offered a rationale for this finding, which is discussed further below. Service connection for bilateral hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing loss and an in-service injury, event or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In April 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral hearing loss disability. At the VA examination, the Veteran’s hearing acuity was measured by pure tone thresholds, in decibels of: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 65 60 45 LEFT 20 25 65 70 65 Speech recognition scores showed 96 percent for the right ear and 94 percent for the left ear. The examiner opined that it was less likely as not that the Veteran’s bilateral hearing loss was caused by or a result of an event in military service. However, as the examiner’s report was confusing in that the examiner indicated there was a threshold shift in service and the rationale contradicted this finding, an addendum opinion was requested. In the subsequent report, the VA examiner explained that the separation examination showed normal pure tone thresholds with no shift in hearing loss. Again, the Board previously remanded this case for a new VA examination with opinion as it previously found the April 2016 opinions incomplete. However, as discussed above, the Veteran failed to report for the additional examination and thus, the Board must base its decision on the current evidence of record. Importantly, the remaining lay and medical evidence reflects that the Veteran’s hearing loss did not manifest until many years after service. In sum, when taking the VA examination in conjunction with the other evidence of record, the preponderance of the evidence is against finding that hearing loss is related to service. The Board recognizes the lay statements by the Veteran indicating the existence of hearing loss. These statements help to establish the presence of a current disability. However, the Veteran is not shown to have medical experience or training and they are considered lay persons. A lay person is competent to report (1) symptoms that are observable, e.g., diminished hearing, turning up the television, ringing in the ears (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Lay persons are not competent to independently opine as to the specific etiology of a condition as this is a medically complex issue. Thus, the lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board signs more probative weight to the medical evidence of record. For all the foregoing reasons, the Board finds that the claims for service connection for bilateral hearing loss must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.