Citation Nr: 21024497 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-48 953 DATE: April 22, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the competent evidence of record indicates that the Veteran’s current bilateral hearing loss disability was not present during service, did not manifest within a year of separation from service, and is not otherwise causally or etiologically related to an in-service event, injury or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1975 to July 1978. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a June 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in March 2020. A transcript of the hearing is in the Veteran’s file. The Board previously remanded the appeal in May 2020, and the matter has been returned for appellate consideration. Specifically, the Board directed that the Veteran be scheduled for a VA examination; as discussed more fully below, the Veteran did attend his examination. Thus, there is substantial compliance with the Board’s remand instructions. Service connection for bilateral hearing loss. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As with all claims for service-connection, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Certain chronic diseases, including sensorineural hearing loss and degenerative joint disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). For 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 at 500, 1000, 2000, 3000, and 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 Veteran contends he is entitled to service connection for bilateral hearing loss. For the reasons outline below, the Board finds that service connection for bilateral hearing loss is not warranted as there is no evidence of a nexus between his claimed bilateral hearing loss and his active duty service. First, the October 2020 VA examination demonstrates that the Veteran has been diagnosed as suffering from hearing loss for VA purposes. Next, the evidence supports the finding of an in-service event. Specifically, the Veteran contends that was exposed to howitzer artillery fire and 50 caliber Brownings. See December 2015 VA Statement in Support of Claim. Generally, a veteran is competent to report that which he perceives through the use of his senses, including events capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran’s testimony is well-documented and unvarying throughout the record, and there is no evidence which tends to contradict his recollections. Moreover, the Board notes that the exposure to hazardous noise is consistent with the Veteran’s MOS. As such, the second element of service connection in-service event has been met. The question for the Board is whether the Veteran’s bilateral hearing loss is related to his active service. To that end, the Veteran was afforded a VA examination in May 2016 to determine the nature and etiology of his claimed hearing loss. The VA examiner found that the Veteran did not then suffer from hearing loss for VA purposes. The VA examiner highlighted the absence of any significant permanent threshold shifts indicative of noise injury were noted when comparing the Veteran’s entrance and discharge examinations. The VA examiner also opined that noise exposure can caused outer hair cell damage, and that damage would be evident in the DPOAE results if noise injury was present. The VA examiner found the Veteran’s current threshold of hearing loss reflected age-related decline in hearing ability. However, the Veteran and his attorney challenge the adequacy of the May 2016 hearing loss results. As they contend that the Veteran’s hearing loss is greater than measured during the VA examination, the Board will provide the Veteran another VA examination to determine the nature and etiology of his claimed bilateral hearing loss. As such, the Board remanded the claim for new VA examination to determine the nature and etiology of the Veteran’s bilateral hearing loss. The October 2020 VA examination report provides that the Veteran’s bilateral hearing loss is unrelated to the Veteran’s active service, to include hazardous noise exposure. The VA examiner noted that the Veteran’s entrance and separation examination showed normal bilateral hearing sensitivity unchanged beyond normal variability. Normal variability was defined as test differences for auditory thresholds of plus or minus 5dB. Although the Veteran’s separation examination noted mild hearing loss low frequency induced, the Veteran’s hearing loss would still be interpreted as normal hearing for VA purposes. The VA examiner noted that the Veteran’s entrance and hearing loss did show an amount of hearing changes (5dB difference between entrance and separation), however the threshold shift of 5dB is not considered significant under DOD or OSHA standards. Moreover, the Veteran’s hearing test data does not show that the Veteran’s hearing changes meet the criteria of significant thresholds by the DOD or OSHA expect at 500 HZ. The VA examiner noted that in May 2016 the Veteran tested at 15 dB at 500 Hz with 25 dB established as the normal threshold. The VA examiner opined that low frequency noise induced hearing loss is not known to occur in isolation absent high frequency hearing loss. “Despite the concession of moderate probability of hazardous noise exposure for his MOS, the veteran’s comparative hearing test results serve as evidence that his hearing did not change during his service period.” The VA examiner also noted the absence of significant permanent shifts in hearing thresholds. In this case, as to the issue of whether the Veteran’s bilateral hearing loss is related to his military service, the Board finds that the October 2020 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history, prior physical evaluation of the Veteran, and pursuant to the Board’s remand instructions. Furthermore, the October 2020 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Service connection is also not warranted on a presumptive basis, as there is no evidence that the Veteran’s bilateral hearing loss was manifest to a compensable degree within one year of his separation. The earliest evidence of objective evidence is 2015, more than three decades after his separation from service. The Board acknowledges the statements provided by the Veteran regarding his bilateral hearing loss. The Veteran is competent to state his decreased hearing acuity, he is not competent to opine as to whether his bilateral hearing loss is related to his active duty service, to include noise exposure. As the Veteran’s statement is not competent as to the question of nexus, it is assigned no probative weight. Therefore, the issue of whether the Veteran’s bilateral hearing loss is related to his active duty service, to include noise exposure must be decided based on the medical evidence of record. Although the Veteran has established a current disability and in-service noise exposure, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss is causally related to his service or manifested within an applicable presumptive period. There is no doubt to resolve. For these reasons, service connection for bilateral hearing loss will therefore be denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Higgins, 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.