Citation Nr: 21024366 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-14 112 DATE: April 22, 2021 ORDER Service connection for 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 are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from September 1959 to September 1963. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 decision, the Board denied service connection for bilateral hearing loss. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In a September 2019 Order, pursuant to a Joint Motion for Remand (JMR), the Court vacated and remanded the Board’s decision. In November 2020, the Board remanded the claim for further development. Service Connection 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). Certain chronic diseases, including hearing loss, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Hearing Loss The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered 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. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. As an initial matter, a January 2015 VA audiological consultation and found a current diagnosis of hearing loss, as defined by VA at 38 C.F.R. § 3.385, is warranted. Hearing tests in November 2012 and November 2013 indicate the same. As this competent evidence is uncontroverted in the record, a current diagnosis is acknowledged by the Board. Moreover, exposure to acoustic trauma is conceded based up the Veteran’s military occupational specialty. Nonetheless, there is no nexus between the exposure and the disability. Audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standards by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 ADD 15 10 10 10 5 The Veteran’s service treatment records include a March 1962 initial flying examination with an audiological examination that produced the following results HERTZ 500 1000 2000 3000 4000 Right 0 0 -5 X 5 Left 0 0 -5 X 5 Because it is presumed the ASA standard was used in 1962, the Board has converted these pure tone thresholds consistent with the conversion chart above. Thus, in ISO-ANSI standards, the Veteran’s pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 Right 15 10 5 X 10 Left 15 10 5 X 10 The Veteran was provided with audiological evaluation upon separation in August 1963 that produced the following results: HERTZ 500 1000 2000 3000 4000 Right 0 -5 0 0 0 Left -5 -5 0 0 0 Upon conversion to ISO-ANSI standards, the Veteran’s pure tone thresholds from the August 1963 audiological evaluation were: HERTZ 500 1000 2000 3000 4000 Right 15 5 10 10 5 Left 10 5 10 10 5 The Veteran was provided with a VA audiological examination in January 2015 which produced the following results: HERTZ 500 1000 2000 3000 4000 Right 20 30 40 70 80 Left 20 25 45 60 75 After a review of the record, in May 2020, a VA examiner found there was not a nexus between the hearing loss and the in-service noise exposure. While not entirely based on the same record, this conclusion is somewhat supported by a January 2015 VA examination and the record. The record does not indicate the Veteran had any hearing loss within a few decades of service. Based upon the records the examiners respectively reviewed, both examiners opined that such a long gap between service and the start of hearing loss is too great to be service connected. The Board relies on the January 2015 examiner’s review of the record, and both examiners expertise and the understanding of longitudinal delays in onset of hearing loss. Thr Veteran, through his representative cites an article cited by the May 2020 examiner as proof the hearing loss is just as likely caused by in-service noise exposure. In doing so, no proof to dispel the May 2020 examiners understanding of the article is proffered. The examiner is presumed to understand the contents of the article he cited as well as other available literature. In his notice of disagreement, the Veteran has argued that the VA examination is inadequate because it “lasted less than 5 minutes.” He also reported that a VA doctor “found his hearing loss to be 100% service connected.” Upon review, however, the record does not contain an opinion from a VA doctor indicating that the Veteran’s hearing loss is related to service. The Board acknowledges the Veteran’s argument, through his representative, that the he should be granted service connection for bilateral hearing loss based on conceded acoustic trauma in service. However, the Board relies on the record in denying this claim and affords deference to the opinions of the VA examiners when looked at collectively. In the November 2018 Appellate Brief, the Veteran’s representative noted that 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. The Board has considered 38 C.F.R. § 3.303(d), however, in this case, a VA examiner has indicated that the Veteran’s hearing was not adversely affected by his active duty service and his current hearing loss is not related to such service. The finding from a medical professional is more probative than the unsupported statement that the post-service hearing loss is related to service. The Board has also considered the lay evidence offered by the Veteran. However, the question of whether the Veteran’s current hearing loss is related to his military service cannot be determined by mere observation alone. The Board finds that determining whether the Veteran’s noise exposure in the military caused his bilateral hearing loss is not within the realm of knowledge of a non-expert. As the evidence does not show that the Veteran has expertise in medical matters, the Board concludes that any nexus opinion that his hearing loss is related to service is not competent evidence and therefore is not probative of whether his current bilateral hearing loss was caused by his active duty service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current disability is related to the Veteran’s active military service or that a chronic disability was incurred in service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application and service connection must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Chalker, Phillip 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.