Citation Nr: 21026525 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-45 081 DATE: May 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss was caused by or incurred in service. CONCLUSION OF LAW The criteria for entitlement to 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, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1963 to December 1966. This case comes on appeal of an April 2017 rating decision. This matter was previously before the Board in October 2020, at which time the Board remanded it for additional development. As a preliminary matter, the Board notes that the Veteran submitted a valid VA Form 21-22 in January 2017, appointing Veterans of Foreign Wars of the United States (VFW) with power of attorney as his representative for his VA claims. In April 2017, the Veteran submitted a new Form 21-22 appointing the American Legion with power of attorney. However, this form was not signed by a representative from American Legion and was therefore not valid. The agency of original jurisdiction (AOJ) informed the Veteran that the form was not valid and invited him to submit a valid form. The Veteran did not submit a new Form 21-22 and provided no further indication that he wished to revoke his representation by VFW, therefore the Board proceeds with the assumption that the Veteran wishes to continue being represented by VFW. Entitlement to service connection for bilateral hearing loss Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Sensorineural hearing loss may be considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran contends he has a current hearing loss disability due to in-service noise exposure, in performance of his duties as an armor crewmember. The Veteran's service treatment records contain no documented complaints of, or treatment for hearing loss. The Veteran's post-service VA treatment records first document complaints of bilateral hearing loss in September 2009. At that time, the Veteran stated that about 30 years prior (i.e., about 1979) he had been in a car accident, hit his head on the left side, and had experienced hearing loss in the left ear ever since. However, in recent years, he had noticed a hearing loss in his right ear and that he was having more difficulty hearing. Although the record does not show audiometric data from that time, the audiologist noted hearing loss in both ears. Subsequent to this claim, the Veteran underwent a VA hearing loss examination in March 2017. At that time, audiology results demonstrated bilateral hearing loss for VA purposes. However, the examiner opined that it was less likely than not that hearing loss was caused by or incurred in service because service treatment records showed that the Veteran was discharged with normal hearing. The March 2017 opinion was not supported by medical rationale and did not address the possibility of delayed onset of hearing loss. Accordingly, the Board remanded the claim for a new medical opinion. In March 2021, a VA examiner, after reviewing the Veteran's file, opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by or incurred in service. By way of rationale, the examiner explained, "The Veteran noted being exposed to significant noise while in the service. However, being exposed to noise does not indicate one will get hearing loss. The risk for hearing loss is based on the intensity of the noise and the duration of exposure. The audiogram is the most sensitive test we have to pick up acoustic trauma that leads to hearing loss. In this case, the Veteran entered the service in 1963 and left in 1966. The audiograms for that time showed no hearing loss in either ear and no decrease in hearing thresholds. This is important as this indicates there was not sufficient noise exposure to cause acoustic trauma and hearing loss while in the service." Regarding the possibility of delayed onset of hearing loss, the examiner went on to explain, "there are a few papers suggesting [delayed-onset hearing loss] in animal models. However, those papers used animals exposed at a younger age than military aged humans and the findings have not been shown to occur in humans. In fact, there are no papers or data to suggest a delayed onset hearing loss exists in humans. The accepted position is that noise sufficient enough to cause acoustic trauma will manifest in close proximity to the noise exposure. In this case the normal audiograms in service show this did not occur. As such, it is less likely than not that his current hearing loss has any relationship to his military service or the noise exposed to while in the service." The Board first notes that there is no competent evidence to suggest an onset of hearing loss within one year of service. Indeed, although the Veteran wrote in a statement accompanying his claim that he had hearing loss before leaving active duty, the audiogram at his separation examination shows otherwise. Moreover, in the course of regular treatment in 2009, the Veteran reported that his left ear hearing loss had started after a car accident in the late 1970s and his right ear hearing loss had become noticeable only a few years prior to that visit. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value than statements made for the purposes of seeking compensation). Thus, service connection on a presumptive basis for a chronic disease is not warranted in this instance, and a continuity of symptoms since service is not shown. Regarding service connection on a direct basis, the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability was caused by or incurred in service. Although the Board acknowledges that the conditions of the Veteran's service included noise exposure, the evidence does not show that this noise exposure ultimately resulted in hearing loss. Indeed, the March 2021 examiner's opinion provides a through explanation as to why this is the case. The examiner's opinion is supported by adequate medical rationale and is highly probative. Meanwhile, the only evidence in favor of a causal link between the Veteran's current hearing loss disability and service is the Veteran's own assertion. Here, the Board notes that the Veteran, as a layperson, is not competent to provide such an etiological assertion as it requires medical expertise. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, as the preponderance of the evidence is against a finding that bilateral hearing loss was caused by or incurred in service, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.