Citation Nr: 21024432 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-36 528 DATE: April 22, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s right ear hearing loss began in service, manifested to a compensable degree within one year of service, or is otherwise related to an in-service disease or injury, to include noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from September 1972 to May 1978. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing has been included with the record. In June 2015, the Veteran previously testified before another Veterans Law Judge regarding the claim at issue. By law, appeals may be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102(a). When a Veteran has had a hearing before two separate Veterans Law Judges covering one or more of the same claims on appeal, a third Veterans Law Judge is assigned to participate in a panel decision. However, in this case, the Veteran’s June 2015 hearing took place prior to the issuance of a Statement of the Case (SOC) for this claim, and therefore, the issue was not ripe at the time of the June 2015 hearing. Therefore, a panel decision is not required. The Veteran’s claim for bilateral hearing loss was previously before the Board in September 2015. The Board remanded the issue for the RO to issue an SOC. The Board again remanded in July 2019 to provide a VA examination to address the etiology of the Veteran’s hearing loss. In a March 2020 rating decision, the RO granted the Veteran’s claim for service connection for the Veteran’s left ear hearing loss. The Veteran’s claim for hearing loss affecting his right ear is again before the Board. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that 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) in-service incurrence or aggravation of a disease or injury; 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). Additionally, certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, for chronic diseases shown in service, the third element of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for right ear hearing loss The Veteran contends that he suffers from hearing loss in the right ear caused by in-service noise exposure. The Board acknowledges that the Veteran has a current diagnosis of hearing loss affecting his right ear. The Veteran’s audiological assessment from the February 2020 VA examination shows a diagnosis of sensorineural bilateral hearing loss with puretone thresholds that meet the VA criteria for impaired hearing. The Board also recognizes the Veteran’s lay statements recounting in-service hazardous noise from various weapons trainings and exposure to machinery, to include helicopters and tanks. Additionally, the Veteran noted during the March 2019 Board hearing that he struggled to hear conversations while in service. The Veteran noted needing fellow soldiers to repeat themselves. The Veteran also had an assistant keep notes of things that were said in case the Veteran did not hear conversations the first time. Thus, the question of service connection turns on whether there is evidence of a nexus between the claimed in-service harmful noise exposure and the Veteran’s present hearing loss. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s service treatment records show no complaints of hearing loss during service. The Veteran’s September 1972 entrance examination recorded the Veteran’s hearing as within normal limits, with thresholds at 0 decibels in the right ear. The Veteran’s hearing test from a February 1977 examination revealed auditory threshold shifts. The Veteran’s audiological evaluation recorded the Veteran’s puretone thresholds for his right ear, in decibels, as: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 X 25 The April 1978 separation examination recorded the Veteran’s right ear hearing thresholds, in decibels, as: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 X 10 The record contains the Veteran’s annual VA and private audiological examinations from 2003 through 2009. The Veteran’s right ear hearing thresholds were measured as follows: In the February 2003 VA audiology examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 25 5 In the February 2004 VA audiology examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 15 10 In the February 2005 VA audiology examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 35 15 In the February 2006 VA audiology examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 25 15 In the February 2007 VA audiology examination, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 20 The Veteran underwent a VA examination to address his hearing loss in October 2007. On the authorized audiological evaluation of the Veteran’s right ear, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 35 25 Speech audiometry revealed speech recognition ability of 92 percent in the right ear. The Veteran submitted a private VA audiology examination in May 2008. Puretone thresholds, in decibels, were recorded as: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 15 The Veteran underwent a VA examination to address his hearing loss in March 2009. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 30 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. Pursuant to the Board remand, the Veteran underwent a VA examination to address hearing loss in February 2020. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 45 25 Speech audiometry revealed speech recognition ability of 94 percent in the right ear. The VA examiner established the Veteran’s diagnosis of sensorineural hearing loss affecting the Veteran’s right ear. However, the VA examiner provided the medical opinion that the Veteran’s right ear hearing loss was less likely as not due to noise exposure in active duty military service. The VA examiner noted the Veteran’s September 1972 enlistment examination recorded his hearing within normal limits upon entrance into active service. The VA examiner acknowledged the Veteran’s threshold shifts from the February 1977 audiogram, but noted that the Veteran’s hearing thresholds recorded on his April 1978 separation examination showed improved hearing from the previous audiologic test. The VA examiner noted that the Veteran’s 2002 [sic] examination showed improved hearing from the Veteran’s separation. The VA examiner concluded that the Veteran’s 1978 examination when viewed with the 2002 [sic] examination, indicated no permanent significant increase in thresholds over time in service. The Board notes that while the VA examiner refers to the Veteran’s 2002 audiograms, the record only contains the Veteran’s earliest VA audiogram from February 2003. The VA examiner acknowledged the Veteran’s reports of military noise exposure. However, the VA examiner noted the best available and most widely used measure of damage due to acoustic trauma is behavioral pure-tone thresholds. The Board finds the VA examiner’s medical opinion, offered in February 2020, to be probative evidence against a finding that the Veteran’s right ear hearing loss incurred in or was the result of his active duty service. The February 2020 medical opinion was based on a thorough review of the Veteran’s medical records, with consideration of the Veteran’s lay assertions, and was supported by a fully articulated rationale with citations to medical literature. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board recognizes the Veteran’s assertion that his right ear hearing loss is related to the in-service noise exposure. Lay persons are competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, since the cause of hearing loss of the Veteran’s right ear can be a complex medical matter and the onset can occur later in life, the Veteran as a layperson without the appropriate medical training and expertise, is not competent to provide a probative opinion as to an etiological relationship between hearing loss and a prior exposure to noise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also considers whether service connection for hearing loss is warranted on a presumptive basis, but the record contains no evidence that the Veteran had hearing loss affecting his right ear to a compensable degree within one year after discharge from service or that he experienced hearing loss for VA purposes continuously since separation. See 38 C.F.R. § 3.307. To the extent that the Veteran asserted he experienced right ear hearing loss since discharge from service, these statements are inconsistent with the Veteran’s VA and private audiological examinations from 2003 through 2009, and the Veteran’s objective VA medical treatment records from December 2002 noting normal hearing prior, 24 years after separation. Although the absence of medical treatment records since service is not dispositive, the fact of this chronology must be considered as it bears probative evidence against continuous symptomatology of right ear hearing loss since the Veteran’s in-service injury. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Upon considering the probative weight of the evidence of record, the Board concludes that the Veteran’s current hearing loss affecting his right ear is not related to his active service. 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 A.V. Bona, 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.