Citation Nr: 21015909 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-17 796 DATE: March 18, 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 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 hearing loss due to service are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to September 1975. In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In November 2019, the Board reopened this claim and remanded it to obtain a prior VA examination report and a new VA audiology opinion regarding the etiology of the Veteran’s hearing loss. As the prior examination report and new VA audiology opinion have been provided, there has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as sensorineural hearing loss, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a compensable degree within one year of the date of discharge from service. 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his current bilateral hearing loss is related to service, to include exposure to loud noises from grenade explosions. VA considers impaired hearing to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis from a grant of service connection for hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). During service, the Veteran’s service treatment records (STRs) show that an audiological examination at entrance in September 1973 was normal. A pre-discharge audiological examination was again normal in August 1975. At the February 2019 hearing, the Veteran provided testimony regarding his exposure to harmful noise while in close proximity to an explosion during a training exercise at a grenade range. The Board finds the Veterans statements regarding noise exposure during service to be competent and credible. Post-service, private and VA medical records show bilateral hearing loss at pure tone threshold levels which meet the VA criteria for hearing loss. The Veteran has been prescribed hearing aids. As the evidence establishes in-service exposure to loud noise and a current hearing loss disability, the question before the Board is whether the Veteran’s current hearing loss is related to his in-service noise exposure. After a private audiological examination in September 2008, a private audiologist noted that the Veteran’s hearing loss was likely initiated in military service with exposure to hand grenade explosions, and could have been aggravated by work noise in later years. No rationale was provided to explain this conclusion. In October 2008, after an audiological examination, a VA examiner concluded that the Veteran’s hearing loss is less likely than not caused by or the result of noise exposure in the service. The VA examiner noted that normal hearing sensitivity was evidenced for both ears at separation. The VA examiner also noted that the Veteran’s reported onset of hearing loss (about 1 year ago) was not relevant in time to his time in service. Pursuant to the November 2019 Board remand, a new VA audiological examination and opinion was provided in January 2020. The VA examiner opined that the Veteran’s hearing loss was not caused by service. The examiner found no significant permanent shift in hearing thresholds beyond test variability from entrance in September 1973 to separation in August 1975. The examiner found the lack of significant permanent shift in hearing thresholds to be objective evidence of no permanent auditory damage on active duty from noise exposure. The examiner also noted that the Veteran reports over thirty ears of exposure to recreational and occupational noise with “some to none” hearing protection. The examiner found that, although noise exposure is conceded, and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone. The examiner found no evidence to support a nexus to relate current hearing loss to military noise and not another etiology. Therefore, the examiner concluded that it is less likely than not that the current hearing loss is related to military noise exposure. The Board finds that the January 2020 VA audiology opinion is the most probative evidence of record as to the etiology of the Veteran’s bilateral hearing loss. This opinion was based on a thorough review of the Veteran’s medical records, consideration of his lay assertions, and supported by a fully articulated rationale. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board has considered the September 2008 private audiological opinion which found the Veteran’s current hearing loss is related to exposure to loud noise in service. However, this opinion did not provide rationale to support this opinion. Therefore, the Board gives greater probative weight to the January 2020 VA audiology opinion. The Board notes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley supra. However, the VA examiner’s opinions here did not solely rest on these findings; the examiner discussed the Veteran’s history, post-service audiological findings, and audiological knowledge. Therefore, the January 2020 VA examiner’s opinion is given great probative weight. The Board acknowledges the statements from the Veteran that his bilateral hearing loss is related to in-service noise exposure from grenade explosions. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing hearing loss symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and an event or injury in military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has also considered whether a grant of service connection is available on a presumptive basis or based on continuity of symptomatology. Here, the Veteran is competent to report hearing loss since service. However, there is no medical evidence that the Veteran reported or was treated for hearing loss within one year of his discharge from service. To the extent that the Veteran reports experiencing hearing loss continuously since discharge from service, these statements are not credible as they are inconsistent with the medical and lay evidence of record showing an onset of hearing loss in 2008, many years after discharge from service. In sum, the competent evidence of record weighs against the Veteran’s assertion that his bilateral hearing loss is etiologically related to his active service. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.