Citation Nr: 21014339 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-39 615 DATE: March 11, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss was not present in service; was not continuous since service, was not shown to a compensable degree within one year of separation from service and is not etiologically related to his active duty service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 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 September 1966 to August 1968, to include service in the Republic of Vietnam. He died in October 2016, and the Appellant is his surviving spouse who has been properly substituted for the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the claim for additional development. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: ‘(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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bilateral hearing loss, as an organic disease of the nervous system, constitutes a “chronic” disease listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as bilateral hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In deciding an appeal, the Board must determine the probative value of evidence, discuss the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency means whether evidence may be considered as coming from a source who is qualified to provide it, while credibility asks whether the evidence may be believed. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). For example, medical professionals are generally competent through training and experience to express opinions about whether a disability was caused during active service. Generally, the opinions of medical professionals such as doctors, psychiatrists, nurses and others who work in the health care field are evaluated by their apparent training, as well as the detail of their reports and knowledge of the facts in individual cases. Medical professionals may also report various findings of laboratory studies and testing that could be evidence in a claim, such as the level of hearing impairment, blood tests, range of motion testing in joint pain, etc. When deciding whether a non-medically trained individual (“layperson”) may provide competent evidence, the Board must determine in each case whether a veteran’s disability is the type for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptoms, which a non-medically trained person may generally do. Barr, 21 Vet. App. 303. In deciding claims, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). After all the evidence is assembled, the Board determines whether the evidence supports the claim or is in relative balance between the evidence favoring and against the claim. If this occurs, the benefit must be granted. However, if the weight of the evidence is against the claim, the benefit is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385, which provides that impaired hearing will be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran’s December 1965 report of medical examination at enlistment showed normal hearing bilaterally. His pure tone thresholds, in decibels were as follows or not tested (as indicated by “N/T”) (note ASA to ISO-ANSI conversion): HERTZ 1000 2000 3000 4000 RIGHT [15] [10] [15] [10] LEFT [15] [15] [10] [10] The Veteran had an additional audiological examination conducted in September 1966. His pure tone thresholds, in decibels were as follows (note ASA to ISO-ANSI conversion): HERTZ 1000 2000 3000 4000 RIGHT [15] [20] [15] [10] LEFT [15] [15] [15] [5] The Veteran’s August 1968 report of medical examination at separation also showed normal hearing bilaterally and the Veteran denied ever having hearing loss. His pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 RIGHT [0] [0] N/T [5] LEFT [5] [0] N/T [5] The September 2013 VA hearing loss examination report indicated the Veteran had a diagnosis of bilateral hearing loss. While the Veteran has bilateral hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it 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. The Board finds that the preponderance of the probative evidence is against a finding that the Veteran had hearing loss that persisted since service, or since within a year of separation from service. There are no treatment records shortly after service separation regarding any complaints of hearing loss. The Veteran’s report of medical examination at enlistment and at separation showed normal hearing and he had normal ear clinical evaluations. Post service treatment records show no indication of the Veteran’s hearing loss until September 2009, decades after separation from service. These medical records are highly probative both as to the Veteran’s subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran’s then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board’s decision); see also LILLY’S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). There is no competent medical evidence establishing that the Veteran’s hearing loss manifested in service or manifested to a compensable degree within a year of separation from service. Additionally, the evidence of record weighs against continuity of symptomatology of hearing loss since his period of service. To the extent that the Veteran is competent to report symptoms of reduced hearing acuity since his period of service or within a year of separation from service, the Board does not find these reports to be credible due to the Veteran’s report of a normal ear clinical evaluation at separation from service. Further, there is no evidence of record demonstrating any complaints or treatment for hearing loss for many years following service separation. Therefore, the preponderance of the evidence is against a finding of service connection on a presumptive basis. Service connection for 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, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. As to the question of an in-service event, the Veteran’s DD Form 214 reflects that his military occupational specialty (“MOS”) was heavy vehicle driver. The law provides that due consideration shall be given to the places, types and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). As a heavy vehicle driver, the Veteran would have been exposed to high levels of noise. Therefore, his noise exposure is presumed. The Veteran had a diagnosis of hearing loss when he died, and his in-service noise exposure has been recognized, the Board finds that a nexus between the Veteran’s current hearing loss and his period of service is not supported by the evidence of record. The December 2020 VA audiologist opined that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service. The audiologist explained that the Veteran was found to have normal hearing at separation, which is etiologically relevant because in 2006 the Institute of Medicine found that the most profound auditory effects of noise exposure occurred immediately following exposure. The examiner indicated that if caused by military noise exposure, hearing loss would have an onset during service and/or would be present at separation. The examiner considered the Veteran’s lay assertions that he had temporary hearing loss during service. However, the examiner noted that this hearing loss was not noted in service treatment records and temporary hearing loss is not a symptom of permanent noise-induced hearing loss. Thus, the Veteran’s statements did not constitute competent medical evidence. The Board finds the audiologist’s opinion probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believed his hearing loss was related to an in-service injury, event, or disease, he was not competent to provide a nexus opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the December 2020 VA audiologist’s opinion. Therefore, the preponderance of the evidence is against a finding of a nexus and service connection on a direct basis is not warranted. Although the Veteran had established a hearing loss disability, the preponderance of the evidence weighs against a finding that the Veteran’s hearing loss was causally related to his service, manifested within an applicable presumptive period, or was chronic in service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.