Citation Nr: 21014476 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 20-03 579 DATE: March 12, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for bilateral sensorineural hearing loss are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1963 to July 1967. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was most recently before the Board in September 2020. The Board remanded the issue for additional development. The requested development has been completed and the matter is properly before the Board. The Board finds that there has been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence 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 is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for bilateral sensorineural hearing loss The Veteran contends that service connection is warranted for bilateral hearing loss because it was caused due to noise exposure while working in close proximity of airfields while on active duty. A review of the record shows that the Veteran has a diagnosis of bilateral sensorineural hearing loss. See November 2020 VA examination. The Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was personnel specialist. Military personnel records confirm that he served as a Duty Status Clerk and his duties involved administrative and accounting tasks, including generating reports and maintaining records. See February 1967 personnel record. Service treatment records (STRs), including the Veteran’s enlistment and separation examinations show normal hearing in-service. The Board notes that audiometric test results dated prior to January 1, 1967 are presumed to have been reported in units pursuant to standards set forth by the American Standards Association (ASA), unless otherwise indicated. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, any ASA units (found in service medical records) must be converted to ISO-ANSI units as appropriate. VA uses a system to convert ASA units to ISO units that adds 15 dB to 500 Hz, 10 db to 1000, 2000, and 3000 Hz, and 5 db at 4000 Hz. Service records show normal hearing (using both ISO-ANSI and ASA units) at service entrance and service separation. Further, the record does not show that the Veteran's bilateral hearing loss manifested to a compensable degree within one year of discharge from service and there is no evidence of a chronic disability in service, and continuity of symptomology is not shown as the Veteran separated from service in July 1967 and was diagnosed with bilateral hearing loss in December 2018; nearly 51 years later. Thus, the presumption in favor of chronic diseases is not warranted in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board remanded this issue in September 2020 after finding that a previous December 2018 VA examination was inadequate. The December 2018 examiner opined that the Veteran’s bilateral hearing loss is less likely as not due to service as his hearing was within normal limits during service and there is a lack of documentation of an OSHA-defined standard during military service. Specifically, the examiner asserted that there was a lack of documentation regarding an OSHA-defined standards during military service; however, in his lay statements, the Veteran asserted that as a part of his MOS. he was exposed frequently to loud noises during service, which was not considered. The Veteran was afforded a new VA examination in November 2020, including an addendum opinion in December 2020. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not (less than 50 percent probability) incurred in, or caused by the claimed in-service injury, event, or illness. The examiner, after considering the Veteran’s lay statements and the entire evidence of record provided a rationale that no permanent positive threshold shifts were noted and the Veteran’s record of not showing combat service or evidence of serving on the flight line, near bombers, including his noted MOS as a personnel specialist (clerk), in the personnel records, which had a low probability for hazardous noise exposure. The Veteran’s representative submitted an Appellate Brief in February 2021 with a link to an article on Wikipedia that the Veteran’s unit was re-designated in 1962 and included flights of B-52 Stratofortress bombers, Boeing KC-135 stratotanker air refueling aircraft and HMA-25A Titan 1 squadron until 1965. However, the Veteran’s service personnel records do not show that he engaged in combat, or that his duties changed as a result of any re-designation that would have exposed him to hazardous noise exposure, and evidence that he served on/near the flight line. The representative also included a link to a Journal of Neuroscience Study from May 2015, which shows that auditory damage can accelerate hearing loss in aging in some cases. However, in this case, in-service auditory damage, or any damage within a year after service, or continuity of symptomology is not shown. Thus, the Board finds that this evidence is of limited probative value. The Board has considered lay statements from the Veteran and his representative, including the February 2021 Appellate Brief. However, the etiology of a condition such as sensorineural hearing loss requires specialized testing and medical analysis that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran or his representative possess the requisite medical knowledge to make such a determination whether the Veteran’s hearing loss was caused as a result of aircraft noise exposure in-service, or due to noise exposure after service. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Service connection for bilateral hearing loss is denied. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.