Citation Nr: 21013887 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-29 129 DATE: March 10, 2021 ORDER Service connection for hearing loss is denied.   FINDING OF FACT The Veteran’s hearing loss did not have its onset during active service or within one year of discharge and is not causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 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 from February 1966 to December 1967. The case is on appeal from a January 2012 rating decision. In June 2017, the Veteran testified at a Board hearing. Most recently, in an October 2019 decision, the Board denied service connection for back, bilateral knee, and bilateral foot disorders and remanded the hearing loss claim for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Service connection for hearing loss. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present 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 or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Analysis The Veteran is seeking service connection for hearing loss. In a February 2011 statement, he reported in-service noise exposure from rifle fire and patrols during Vietnam caused him to develop hearing loss. During the June 2017 Board hearing, he reported in-service noise exposure during parachute jumps and experiencing the onset of hearing problems in 2001. He also reported that a physician told him his hearing loss “could be” due to service, but he was not definitive about the cause. The Veteran’s service personnel records (SPRs) show that he completed parachute jumps during service. His service treatment records (STRs) show that he did not report experiencing hearing problems during service and denied hearing loss in a November 1967 report of medical history. His separation examination is marked normal for ears and drums. The examination includes audiometric findings showing some lower hearing thresholds for his right ear as compared to earlier in-service testing, but does not include left ear hearing audiometric findings. The Veteran was afforded a VA audiometric examination in March 2014. The examiner diagnosed him with bilateral hearing loss. The examiner found that the Veteran’s right ear hearing loss is not at least as likely as not related to service, but found that an opinion could not be offered in regard to left ear hearing loss without resorting to speculation. Pursuant to a November 2017 Board remand, the Veteran was afforded another audiometric examination in February 2018. The examiner diagnosed him with bilateral hearing loss, but found that it is not at least as likely as not related to service. Pursuant to the October 2019 Board remand, the Veteran was afforded another audiometric examination in December 2019 and a nexus opinion was obtained from an otolaryngologist in December 2020. The December 2019 examiner diagnosed the Veteran with bilateral hearing loss. The otolaryngologist reviewed the Veteran’s file, including the December 2019 examination report. He reported that the 1967 audiometric findings did not show hearing loss in the right ear. The otolaryngologist also reported that the first documentation of hearing loss was in 2011, 44 years after discharge. He explained that hearing loss caused by acoustic trauma develops in proximity to the event. He noted that some research has suggested delayed onset hearing loss in animal models, but that his has not been shown in humans and is not considered the accepted position based on the entirety of the literature. The otolaryngologist concluded that it less likely than not that the Veteran’s right and left ear hearing loss was incurred in or caused by an in-service injury, event, or illness. The Board finds that service connection for hearing loss is not warranted. In this regard, the otolaryngologist’s findings and opinion are clear and unequivocal and are based on the relevant information, including the Veteran’s statements, STRs, post-service medical records, and medical research. In addition, his explanation is logical and follows from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the otolaryngologist’s conclusion that the Veteran’s hearing loss was not at least as likely incurred in or caused by an in-service injury, event, or illness is highly persuasive and probative evidence. In addition, the Veteran has reported experiencing the onset of hearing problems in 2001, so the evidence does not indicate the onset of hearing loss during service or within one year of discharge. The Veteran believes that he has hearing loss that is related to in-service noise exposure, however, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. The Veteran, as a lay person, has not established the competence needed to rebut the expert medical opinion in this case. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. As such, the Veteran’s opinion is not adequate to rebut the otolaryngologist’s conclusion, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his service and hearing loss. In addition, the Veteran has not reported experiencing the onset of hearing loss during service or within one year of discharge and a continuity of symptomatology has not been shown. The Board notes that the Veteran reported a physician stated his hearing loss could be related to service. However, as the reported finding is a tentative conclusion, it is assigned very little probative weight. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). In addition, the physician’s rationale for the reported statement was not provided. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Therefore, the Board finds the otolaryngologist’s opinion to be more persuasive. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s hearing loss had its onset during service or within one year of discharge or is causally or etiologically related to any disease, injury, or incident during service. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.