Citation Nr: 21026394 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-27 494A DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss was not shown in service or within a year of service discharge; and, the Veteran's diagnosed bilateral hearing loss is not shown to be related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 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 Marine Corp in Vietnam on active duty from October 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin which denied service connection for bilateral hearing loss. The Board remanded this issue in November 2018 for additional development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter is properly before the Board for adjudication. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, 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). The threshold for normal hearing is from 0 to 20 decibels. 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. Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307 (a)(3), 3.309(a). Sensorineural hearing loss qualifies as a chronic disease as it is an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is a qualifying chronic disease. See Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. § 3.309 (a). As a result, service connection via the demonstration of continuity of symptomatology is applicable. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The Veteran contends that his bilateral hearing loss is due to in-service noise exposure. As a primary matter, the Veteran argues that the February 2021 VA examination report is inadequate. Specifically, the Veteran reported the VA examiner was rude, spent less than 15 minutes examining him, and asked him to guess during portions of the examination. See April 8, 2021 Correspondence. A VA examination is required when necessary to decide a claim, and if VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The United States Court of Appeals for the Federal Circuit has held that VA examinations are presumed to be adequate absent a specific challenge as to their adequacy. See Sickels v. Shinseki, 643 F.3d, 1362, 1366 (Fed. Cir. 2011). Moreover, there is a presumption of regularity under which it is assumed that government officials have properly discharged their official duties. United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The presumption of regularity in the administrative process may be rebutted by clear evidence to the contrary. Schoolman v. West, 12 Vet. App. 307 (1999); Mindenhall v. Brown, 7 Vet. App. 271 (1994). In this instance, the February 2021 VA examiner, who also conducted the October 2013 VA examination, indicated that she reviewed the Veteran's VA claim file, which contains multiple lay and medical statements regarding the severity of the Veteran's hearing loss, conducted an in-person examination and recorded extensive notes describing the Veteran's remarks during the examination. For instance, it was annotated that the Veteran (1) reported that he was involved in combat in Vietnam, (2) that he was exposed to gunfire, explosions, grenades, rockets, artillery, and aircraft noise, (3) that he reported he experienced difficulty hearing conversations, especially in crowds, (4) he had no history of occupational noise exposure pre-service, (5) he has no occupational noise exposure post-service, and that (6) he has no recreational or social noise exposure. Moreover, the examiner's report is responsive to VA criteria for examination of hearing loss for disability rating purposes. The examiner conducted objective tests, such as the pure tone thresholds and the Maryland CNC. The Veteran's assertion that the examiner failed to spend sufficient time with him in order to obtain an accurate evaluation of his disability is baseless. The October 2013 examination lasted 15 minutes, which is approximately the same amount of time spent on his 2021 VA examination. If the examiner was rude to the Veteran, that is unfortunate, but does not bolster the argument that the examination report is inadequate. Additionally, the Veteran may have been told to do his best or guess with regards to what he was hearing; again, this instruction does not suggest that the examination report is inadequate. In any case, the Veteran's allegations go to the results of audiometric testing and the Veteran has hearing loss for VA purposes so this is not at issue. Accordingly, the Board finds the Veteran's specific allegations insufficient to overcome the presumption that the VA examination was performed correctly and finds that the examination is adequate. See Sickels, supra. Thus, VA's duty to assist with respect to obtaining an adequate VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Turning to the Veteran's claim for service connection, sensorineural hearing loss for VA purposes was shown on VA examination in October 2013 and February 2021. The Veteran served as a Rifleman and received the Combat Action Ribbon, Rifle Sharpshooter Badge, Pistol Expert Badge, and reported exposure to traumatic noise levels during service in the Republic of Vietnam. Accordingly, Shedden elements (1) and (2) are met. Turning to Shedden element (3), the Veteran underwent a VA examination in October 2013. The VA examiner opined that the Veteran's hearing loss was not caused or aggravated by active service. She explained that the Veteran's induction examination and separation examination showed his hearing was within normal limits. The examiner found threshold shifts in hearing acuity sufficient for Department of Defense purposes from enlistment to separation. The examiner noted that the Institute of Medicine (IOM) found there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure ceased. IOM found that a prolonged delay in the onset of noise-induced hearing loss was unlikely. Based on the Veteran's minimal hearing threshold shifts during service, the length of time between discharge and complaints of hearing loss, and the IOM report, the examiner concluded that the Veteran's current hearing loss was less likely due to or a result of in-service noise exposure. The Veteran was afforded a VA examination in February 2021. The same 2013 VA examiner re-evaluated the Veteran. Essentially, the examiner's rationale remained identical to her 2013 opinion. She included that the Veteran did not report, seek treatment for, or complain of hearing loss during service. In light of the lack of objective evidence of any permanent auditory damage on active service and the absence of hearing complaints during service or at separation, the examiner opined that bilateral hearing loss was less likely than not incurred in or caused by in-service noise exposure. The Board affords the examiner's opinion great weight, as it was based on medical principles and adequate rationale, and the examiner considered the Veteran's lay statements and history of symptom manifestation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There are no competent opinions to the contrary. Turning to presumptive service connection for the Veteran's bilateral hearing loss, the record does not reflect a diagnosis of hearing loss within one year of service. The Veteran does not contend otherwise. Consideration has been given to the Veteran's report of experiencing hearing loss since service. These reports are not credible due to inconsistency with the evidence of record. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) In this regard, the Board notes that the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service-connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, and importantly, when seeking treatment the Veteran did not initially report symptoms continuously since service. 38 C.F.R. § 3.303 (b). The Board finds that his statements to clinicians for purposes of treatment are the most probative. It was in his best medical interest to provide as accurate a history as possible to, in turn, receive the best and most appropriate course of care. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ([R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons. )). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. While there is plenty of evidence of bilateral hearing loss, there are no indicators of any type of sensorineural hearing loss until 2013, however. More importantly, treatment records show he denied hearing difficulties in February 2006, February 2007, January 2010, and March 2010. The first medical evidence of hearing loss is in 2013, approximately 41 years after discharge. It is acknowledged that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding chronicity or etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is no indication that the Veteran is competent to etiologically link any symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise as to these disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for bilateral hearing loss is not warranted. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.