Citation Nr: 21022030 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-01 448 DATE: April 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence establishes that the appellant’s bilateral hearing loss was not incurred in service, sensorineural hearing loss was not manifest to a compensable degree within one year of separation, and the current bilateral hearing loss is not otherwise causally related to an injury or disease during his active service. 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. §§ 3.303, 3.304, 3.307, 3.309, 3.385, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from July 1958 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) from a February 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied entitlement to service connection for bilateral hearing loss. The appellant filed a timely Notice of Disagreement (NOD), received in March 2019. A Statement of the Case (SOC) was issued in December 2019. A timely substantive appeal was received in January 2020. The appellant was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. A transcript is of record. In January 2021, the Board, inter alia, remanded the issue of entitlement to service connection for bilateral hearing loss. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for certain chronic diseases, including an organic disease of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to 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 also Hensley v. Brown, 5 Vet. App. 155 (1993). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. §5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. §5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” See Gilbert, 1 Vet. App. at 54. Entitlement to service connection for bilateral hearing loss. The appellant asserts that his current bilateral hearing loss is the result of in-service noise exposure in the course of his duties as a light weapons infantryman. He contends that he was never issued earplugs during active duty. VA has conceded in-service exposure to hazardous noise, based on the appellant’s military occupational specialty (MOS) as a light weapons infantryman. See February 2021 SSOC. The appellant’s service treatment records show that at his June 1961 enlistment examination, his hearing acuity was 15/15 on whispered voice testing. In-service treatment records are negative for complaints or findings of hearing loss. The appellant’s hearing acuity was tested during his June 1961 separation examination. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 15 (25) 10 (20) NT -5 (0) LEFT 5 (20) 5 (15) 0 (10) NT 5 (10) Note: As this test occurred in June 1961, it was likely recorded using American Standards Association (ASA) standards. Thus, the Board has converted the audiometric data originally recorded using ASA standards to International Standards Organization-American National Standards Institute (ISO-ANSI) standard to facilitate data comparison for VA purposes. The converted values are in parentheses. At the separation examination, the appellant’s ears were examined and determined to be normal. On his accompanying Report of Medical History, the appellant reported that he was in good health and denied ear, nose, or throat trouble, running ears, or having worn a hearing aid. The post-service record on appeal is negative for findings of sensorineural hearing loss in the first post-service year. The appellant was afforded a VA examination in November 2018, at which time the examiner confirmed a diagnosis of bilateral hearing loss sufficient for VA compensation purposes. See 38 C.F.R. § 3.385. The examiner determined that the currently diagnosed bilateral hearing loss was less likely as not caused by or a result of the appellant’s active service; however, the Board has found the November 2018 opinion inadequate as the examiner relied solely on the normal audiometric examination at separation. Pursuant to the January 2021 remand directives, VA obtained a medical opinion in February 2021. After a review of the claims file, the VA examiner opined that it was less likely than not that the appellant’s bilateral hearing loss was incurred in or otherwise causally related to his active service. The examiner provided the following rationale: Entrance exam was a whisper test, which is not a reliable indicator of hearing, separation exam indicated hearing well within the normal range 500-8000 Hz with ASA-ANSI correction factors applied, which is objective evidence of no permanent auditory damage on active duty from conceded noise. The veteran stated in hearing that he did not remember having a hearing evaluation, but data is clearly present. The veteran reports that his hearing loss started during active duty, however, he is not a physician, and cannot self diagnose hearing loss. He did not seek treatment, according to C-file until March 2015 (50+ years post separation) after significant noise exposure working in a shipyard as a structural fitter. There is no report of complaint/treatment for hearing decrease in STRs or at separation. As started by Kujawa (2006) “hearing losses in humans are multifactorial with contributions from, and potential interactions among numerous variables that can shape final outcomes.” Any noise exposure through the veteran’s life, including traffic noise, smoke alarms, etc. would have to be considered in addition to any military noise exposure. Many factors contribute to age related hearing loss including genetic predisposition and medical conditions. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case, therefore it is less likely than not that the hearing loss is related to military noise exposure. The Board affords great probative weight to the February 2021 VA medical opinion that the appellant’s bilateral hearing loss was not incurred in, or otherwise causally related to his active service, included conceded noise exposure. The opinion was based on the relevant evidence of record, including the appellant’s statements and history, and included a detailed rationale with citations to the applicable medical literature. There is no competent evidence to the contrary. The Board has carefully considered the contentions of the Veteran that his current hearing loss ist he result of in-service noise exposure. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran’s assertions as to the presence of a hearing loss disability during service and the etiology of his current disability concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ( It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant ); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer ). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony falls short in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran’s lay theory regarding the etiology of his current hearing loss disability is contradicted by the conclusions set forth in the VA medical opinion, which specifically considered the Veteran’s lay statements and in-service symptoms. The Board finds the specific, reasoned opinion of the trained medical professional who provided that opinion to be of greater probative weight than the more general lay assertions of the Veteran. (Continued on the next page)   The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Crucially, however, the Veteran’s contentions in support of service connection, including continuing post-service symptomatology of the currently diagnosed hearing loss are contradicted by the findings of the VA medical opinion which specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinion. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran’s favor when the evidence is in equipoise. Considering the overall evidence, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the most probative evidence establishes that bilateral hearing loss did not have its inception during active duty, did not manifest to a compensable degree within one year of separation, and is not otherwise causally related to an injury or disease during active service. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.N., 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.