Citation Nr: 21015202 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-14 080 DATE: March 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current bilateral hearing loss disability began during active service, or is otherwise related to an in-service injury or disease. 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, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from September 1968 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2017. This case was previously before the Board in December 2017, November 2018, and June 2020 when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board for further appellate review Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). With regard to the presence of a current disability, VA will consider impaired hearing to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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. Certain chronic diseases, to include hearing loss as an organic disease of the nervous system pursuant to 38 C.F.R. § 3.309(a), will be service connected on a presumptive basis if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Further, if a chronic disease is noted during service or during the one-year presumptive period after separation from service, a continuity of symptomatology can show chronicity and a subsequent manifestation of the same disease is presumed to be service connected. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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”). A Veteran is competent to report symptoms that he or she experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Board finds that service connection for bilateral hearing loss is not warranted. While exposure to hazardous noise in-service has been conceded and a VA examination in December 2012 confirmed that the Veteran does in fact currently experience bilateral sensorineural hearing loss, the preponderance of the evidence goes against a finding of nexus between the Veteran’s military service and his current hearing loss disability. As a preliminary matter, the Board finds the presumptive provisions regarding chronic diseases are not for application in this case because there is no evidence that indicates the Veteran’s current bilateral hearing loss disability was noted in service or manifested to a compensable degree or was otherwise noted within one year of his separation from service. Although the Veteran has repeatedly testified that he experienced hearing loss during service, including reporting in a July 2012 Statement of the Case that he experienced near-total hearing loss after being knocked to the ground following an explosion during service, the Veteran’s service treatment records do not indicate any objective nor subjective manifestations of hearing loss. The Veteran himself did not testify that this instance of temporary loss was the initial point of steady hearing regression, or the start of a pattern of intermittent hearing loss; rather, he contends that the multiple exposures to hazardous noise in-service resulted in hearing damage that did not manifest as his present hearing loss until over 40 years after service. The Board acknowledges that a finding that service connection is not warranted on a presumptive basis does not foreclose the possibility of establishing service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994). However, assessment of the all the evidence of record does not support the finding of nexus necessary to award service connection. The Veteran contends that his hearing loss began while in service, citing proximity to gunfire, rockets, jets engines, helicopter turbines, and mortar explosions as various sources of damage to his hearing. Although the Veteran is competent to testify as to his subjective experience of the symptoms hearing loss, the Veteran is not competent to state the origin of the hearing loss that he experienced as this is a medically complex matter. Therefore, while the Board acknowledges and accepts the Veteran’s lay statements that he perceived a decline in his hearing in service, these statements alone are insufficient to support a finding of nexus in light of the rest of the evidence of record, which discourages such a finding. The Veteran’s claim for hearing loss was remanded in June 2020, after obtaining multiple medical opinions which improperly relied only on the fact that in-service audiology exams did not notate hearing loss to rationalize denying the Veteran’s claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Therefore, the Board directed that the Veteran receive a new examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The December 2020 VA examiner noted that although the Veteran does presently suffer from hearing loss and in-service hazardous noise exposure is conceded, his current disability is less likely than not due to service because a nexus between his current disability and his service is still absent. After reviewing the Veteran’s record, the examiner remarked that there were no significant threshold shifts between his September 1968 enlistment and June 1971 separation audiograms. The examiner explained the consequence of this finding: “A significant shift in hearing is determined to be a 15 dB shift or greater. The reason this is used is that there can be a 10 dB intertest variability that is normal. This means you could take the test right now and tomorrow and have a 10 dB shift simply because of testing conditions as opposed to true hearing loss. In this case, the patient did not show a 15 dB shift in any frequency.” The examiner also explained why a finding of delayed onset hearing loss would not be appropriate: “Although noise exposure is conceded, simply being exposed to noise does not [guarantee] one will develop hearing loss. It is based on the intensity of the noise and the duration of exposure… There have been some papers suggesting a delayed onset hearing loss in animal models. However, this has not been shown in humans and is not considered the accepted position based on the body of the literature. The position is that hearing loss will manifest in proximity to the noise exposure. The farther one gets from the reported noise exposure before developing hearing loss the less likely that noise exposure is the etiology of the hearing loss. In this case, the first documented hearing loss is in 2012, or 40+ years after leaving the service.” The December 2020 VA examination report provided a well-reasoned and extensive rationale as to why the etiology of the Veteran’s hearing loss is less likely than not attributable to service. There are no competent medical opinions of record that contradict the December 2020 negative opinion. Therefore, the preponderance of the evidence is against a finding of nexus to service, the benefit-of-the-doubt doctrine does not apply, and the Veteran’s service connection claim for bilateral hearing loss must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.