Citation Nr: 21014220 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-43 643 DATE: March 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT A hearing loss disability was not shown in service or to a compensable degree within one year of the Veteran’s discharge from service, and the most probative evidence indicates the Veteran’s current hearing loss disability is not related to his military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1994 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This matter was last before the Board in May 2020, when it was remanded for further development. SERVICE CONNECTION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be 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 or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, 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. 1. Entitlement to service connection for bilateral hearing loss For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran claims that his bilateral hearing loss is a result exposure to acoustic trauma in military service. The Veteran’s military occupational specialty was a small arms repairman which has a moderate probability of noise exposure. He testified that his bilateral hearing loss onset in 1997. A current bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 is shown in an August 2013 VA examination. The question that remains is whether the Veteran’s bilateral hearing loss disability is related to service. Service treatment records (STRs) show the Veteran had an audiological evaluations in February 1994 and January 1998, in conjunction with his entrance and separation examinations. On both tests, auditory thresholds reflected hearing within normal limits, with the pure tone thresholds on entrance examination being 20 decibels or less and the pure tone thresholds on the separation examination being listed as 0 decibels at the 500, 1000, 2000, 3000 and 4000 Hertz. The first and only indication that the Veteran met the criteria for bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385 was during audiological testing conducted in August 2013. In this case, a bilateral hearing loss disability was not shown in service, but the Veteran has testified continuous symptom of bilateral hearing loss beginning in service and continuing since. However, the subjective observation of decreased hearing acuity does not equate to actual hearing loss. Medical testing and expertise are needed to determine whether actual hearing loss exists. There is no indication that the Veteran has specialized training sufficient to diagnose hearing loss or determine its etiology. Thus, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the presence of a hearing loss disability and the etiology of such is a matter not capable of lay observation and requires medical expertise to determine. Thus, while the Veteran may believe he suffered from a hearing loss disability during and since service, the Board finds the in-service and post-service audiograms to be more probative as to the actual presence of a hearing loss disability. As the Veteran was not shown to have a hearing loss disability manifested during service or following service until August 2013, competent evidence linking the current condition with service is required to establish service connection. On this question, the Board finds the most probative evidence is against the claim. In this regard, in November 2020 a VA examiner opined that it is less likely than not that the Veteran’s bilateral hearing loss is due to military noise exposure. The examiner notes that the Veteran does not currently have hearing loss per VA criteria. The examiner explained that as the Veteran does not have hearing loss it makes it less likely than not that the claim of hearing loss is related to military service. Furthermore, comparing his enlistment to his separation audio his hearing thresholds improved at every frequency. The examiner explained that there have been some papers suggesting a delayed onset hearing loss in animal models but that has not been shown in humans and is not considered the accepted position based on the entirety of the literature. As such, it remains less likely than not that any claim of hearing loss is related to military service. The VA examiner’s opinion was based on a review of the claims file and contained adequate rationale; thus, the Board finds it is entitled to greatest probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges that the August 2013 VA contract examiner opined that the Veteran’s hearing loss was at least as likely as not caused by or a result of an event in military service. However, that examiner did not review the evidence in the claims file in arriving at that opinion and therefore did not address the normal hearing results during service. Thus, this opinion is afforded significantly less probative weight. Id. Thereafter, the RO sought an addendum opinion based on claims file review. In September 2013 the VA examiner concluded, after claims file review, that the current hearing loss was less likely than not related to service. Such opinion is consistent with and clarified by the November 2020 examiner’s opinion. In sum, the most probative evidence of record is against a finding that the Veteran’s bilateral hearing loss arose in service or for decades thereafter, or that it is otherwise related to service. Thus, service connection for hearing loss is not warranted. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.