Citation Nr: 21025021 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-13 665 DATE: April 27, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and right ear hearing loss is not otherwise caused by or related to service. 2. The Veteran’s left ear hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and left ear hearing loss is not otherwise caused by or related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.385. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1967 to September 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) addressing the left ear and a January 2016 rating decision addressing the right ear. In March 2020, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In its June 2020 remand, the Board corrected a procedural error by the RO which had split the Veteran’s original bilateral hearing loss claim into two separate claims and proceeded with only the right ear, and rejoined the Veteran’s left ear hearing loss claim. Therefore, the claim for service connection for hearing loss in both ears is before the Board. The Board also remanded these matters in order to obtain an addendum opinion from a VA examiner, and these matters have since returned to the Board for further adjudication. 1. Entitlement to service connection for right ear hearing loss is denied. 2. Entitlement to service connection for left ear hearing loss is denied. Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. Certain chronic diseases, including organic diseases of the nervous system such as hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service, if they manifested to a compensable degree within a presumptive period following separation from service, or if they were noted in service or within an applicable presumptive period with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board points out that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e. meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran’s service treatment records (STRs), including his entrance and separation examinations, are silent with respect to hearing loss. His VA and private records first mention hearing loss during his April 2012 examination, with continuous complaints from then forward. The Veteran was afforded VA examinations in April 2012, April 2014, October 2017, and August 2020. The April 2012 examination showed the Veteran had hearing loss in both ears. However, the examiner opined the Veteran’s hearing loss was less likely than not related to his service because entrance and separation examinations showed normal hearing, indicating no significant change in his hearing during service. The April 2014 examiner similarly opined the Veteran’s hearing loss was not related to service because his hearing was normal upon entry and exit, with no change indicated when comparing the two examinations. The October 2017 examiner again opined the Veteran’s hearing loss was less likely than not related to his service because there was no evidence of a significant threshold shift during service, with his entrance and separation examinations showing normal hearing in both ears. Additionally, the examiner noted there was no evidence of hearing loss until many years after separation from service. The August 2020 examiner stated the Veteran’s STRs lacked permanent threshold shifts during service, which supports the idea that there was no lasting auditory damage from his conceded in-service noise exposure. The examiner further stated there is currently no research to support delayed-onset noise-induced hearing loss, and while there may not be hearing loss at the time of exposure, the auditory damage occurs at that time and results in a change in the auditory system. However, the examiner found there to be no evidence of permanent auditory damage from in-service noise exposure. The threshold differences noted between in-service examinations were due to test variability and were not indicative of permanent auditory damage. The Veteran submitted private audiometric test results from Sam’s Club Hearing Aid Center from June 2015 and from Sumter ENT and FPS from September 2017. However, neither examination provided an opinion on the etiology of the Veteran’s hearing loss. During the March 2020 hearing, the Veteran testified that he first noticed hearing problems around 2010 that progressively worsened. He noticed even more hearing issues in 2013 because he continuously had to turn the volume on the television up to the point where his wife commented that he “must be half deaf or something.” He also testified about his time working on Chinook helicopters, stating they were very noisy and the noise affected his ears, but he just did not realize what was going on at the time. After reviewing the evidence of record, the Board finds the Veteran’s hearing loss was not shown to be chronic during service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran was first diagnosed with bilateral hearing loss during his April 2012 examination, over 40 years after service. And, while the Veteran stated he first noticed trouble with his hearing around 2010, this is also approximately 40 years after separation from service, and there is no other evidence in the record to indicate continuous symptoms between his separation from service and diagnosis. Therefore, service connection for hearing loss on a presumptive basis is not warranted. Service connection for hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing loss and an in-service injury, event, or disease. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In reviewing the examinations of record, the Board finds the April 2012, April 2014, and October 2017 examinations to be inadequate because the examiners’ opinions all rely on an absence of hearing loss noted during service. However, absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford, 3 Vet. App. at 89. By contrast, the August 2020 examiner’s opinion addressed the lack of permanent threshold shifts during the Veteran’s service, stating that a lack of threshold shifts indicated that no permanent auditory damage occurred during service, even though the Veteran was exposed to hazardous noise. Additionally, the examiner stated that there is no current research supporting delayed-onset hearing loss, and that while there may not have been hearing loss at the time of exposure, the auditory damage would be present. However, the examiner found no evidence of auditory damage during service based on the lack of threshold shifts that were more than just variability between tests. The Board finds the August 2020 examiner’s rationale to be adequate and highly probative, having addressed the difference between the Veteran’s entrance and separation examinations, as well as having addressed the possibility of delayed-onset hearing loss. The Board also considered the Veteran’s assertions that his hearing problems are due to his military service. In that respect, the Board acknowledges that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including his symptoms of hearing loss, and that his assertions in that regard are entitled to probative weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran is not competent to provide a nexus opinion because these issues are medically complex and require specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran’s statements about his symptoms of hearing loss are both competent and credible, the Veteran himself stated he did not notice problems with his hearing until 2010, nearly 40 years after he separated from service. Additionally, while the Veteran’s lay statements about his symptoms are competent and credible and therefore have probative weight, the August 2020 examiner’s opinion is highly probative, and therefore the Board gives more weight to the examiner’s well-reasoned medical opinion. While the Veteran believes his bilateral hearing loss is due to his conceded in-service noise exposure, the most probative medical evidence of record does not show this to be the case. As the August 2020 examiner stated, the fact that his hearing was within normal limits at entrance and separation with no permanent threshold shift, considering the gap of about 40 years between his separation from service and first noticing symptoms of hearing loss, and the fact that the auditory damage from noise exposure would have been shown soon after the exposure event, a nexus cannot be formed between his hearing loss and his in-service noise exposure. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims for entitlement to service connection for right and left ear hearing loss must be denied. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.