Citation Nr: 21022093 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 18-28 599 DATE: APRIL 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with bilateral hearing loss disability per VA regulation. 2. Exposure to loud military noise in service is conceded. 3. The Veteran’s current bilateral hearing loss disability, diagnosed decades after service, is not shown to be etiologically related to noise exposure during active service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1954 to December 1955. 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Bilateral sensorineural hearing loss (as an organic disease of the nervous system) is considered a “chronic” disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic’ disease became manifest to a degree of 10 percent within 1 year from date of termination of 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 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Here, the Veteran asserts that he currently has bilateral hearing loss that resulted from exposure to hazardous noise due to his military occupational specialty (MOS) as a field artillery crewman chief. Specifically, the Veteran has stated that he was frequently exposed, without hearing protection to artillery noise, including 105, 155, and 8-inch howitzers. For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran in this case is currently diagnosed with a bilateral sensorineural hearing loss disability per VA regulation. See e.g., March 2018 VA audiology examination report. Next, exposure to acoustic trauma in service is conceded because the Veteran’s MOS carried with it a high probability of military noise exposure. However, upon careful review of all evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran’s current hearing loss disability is related to the in-service acoustic trauma. The Veteran’s service treatment records (STRs) show no hearing complaints or diagnosis during service. The Veteran’s hearing was recorded as within normal limits by means of a whisper test at separation, and at that time, he denied having had any ear trouble at separation from service in December 1955. Although the absence of hearing loss alone is not fatal to the claim, it is one factor to be considered in analyzing the claim. At any rate, the Board finds no evidence of chronic symptoms of bilateral hearing loss in service. The Veteran has not reported, and the evidence does not otherwise reflect, that he has experienced a continuity of hearing loss symptomatology in the years since service. By the Veteran’s own report, while he had a local hearing test 20 years prior to 2015, any hearing difficulty at the time was not sufficient to warrant hearing aids. Regardless, however, per the Veteran’s own reports, his symptoms were not until approximately four decades after separation from service. This four-decade gap between service and hearing loss symptoms is a factor weighing against the claim. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran’s entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). Thus, neither the clinical record nor the lay statements of record establish a continuity of hearing loss symptomatology. Given the evidence as a whole, the Board finds mor probative the Veteran's medical records more contemporaneous to service than his more recent assertion that his hearing loss disability is related to his military service, voiced many years after service and in connection with a claim for disability benefits. Additionally, the evidence of record does not establish any clinical manifestations of sensorineural hearing loss to a degree of 10 percent or more within the applicable time. See 38 C.F.R. § 3.307(a)(3). The first evidence of a diagnosis of sensorineural hearing loss was not shown in the evidence of medical record until 2015, which is approximately 60 years after service separation. There is also no competent evidence of a nexus between the Veteran’s current hearing loss and service. In March 2018, the Veteran was afforded a VA audiology examination, at which time a diagnosis of bilateral hearing loss for VA purposes was confirmed. The Veteran reported post-service occupational noise exposure from 41 years of qualifying annually as a police officer and carpentry work, and recreational noise exposure from shooting, lawn care and motorcycle use. The VA examiner recognized the Veteran’s exposure to loud noise in service and after service and opined that it was less likely than not that the Veteran’s bilateral hearing loss disability was caused by or a result of noise exposure in service. The examiner reasoned that there is no evidence of hearing loss or acoustic trauma complaints in the Veteran’s service treatment records; there is no date, event or circumstance of onset reported in relation to the claim; the Veteran had a normal whispered-voice test at separation; he had a hearing test locally 20 years ago which indicated he was not a hearing aid candidate, and his hearing loss was not diagnosed until decades after service. The March 2018 VA audiology opinion, which is authored by an audiologist, contains sound reasoning, and is based on an accurate factual predicate. It is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). There is no contrary medical opinion in the evidence of record. The Veteran is competent to report observable symptoms of hearing loss; however, he is not competent to offer an opinion as to its etiology, as the etiology of hearing loss relates to 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. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007). The Board finds that the VA examiner’s probative medical opinion outweighs the lay assertions in this case. Additionally, the Board acknowledges the Veteran’s assertions in his April 2018 notice of disagreement and June 2018 substantive appeal that he was exposed to hazardous noise during service. However, as discussed above, exposure to hazardous noise during service is indisputable but the competent evidence is against finding that the current hearing loss is related to it. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application, and the claim of service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Beach, 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.