Citation Nr: 21027213 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-42 594 DATE: May 5, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT 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 the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to January 1972, from February 2002 to February 2, 2004, from February 4, 2004 to May 31, 2004, from October 2004 to March 2005, from September 2005 to March 2007, and from May 2009 to May 2010. This appeal is in the VA legacy appeals management system and comes to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision. This matter was previously before the Board as a claim for service connection for bilateral hearing loss. In an August 2020 rating decision, the RO granted service connection for left ear hearing loss only. The Board has therefore recaptioned the matter as a claim for service connection for right ear hearing loss as reflected above. A hearing was conducted by the undersigned Veterans Law Judge in April 2019. A transcript of the hearing has been associated with the claims file. Entitlement to service connection for right ear hearing loss The Veteran contends that his right ear hearing loss was caused by his conceded in-service exposure to hazardous noise. Alternatively, he contends that his right ear hearing loss should be presumptively service connected as a chronic condition. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, 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 Veteran has a current diagnosis of right ear sensorineural hearing loss as evidenced by a May 2015 diagnosis in his VA treatment records and confirmed by a September 2015 VA examiner. Sensorineural hearing loss is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records (STR) and post-service treatment records show the Veteran was not diagnosed with right ear hearing loss until May 2015, four decades after his combat experience and conceded exposure to hazardous noise, five years after his separation from his last period of active service, and therefore at least four years outside of the applicable presumptive period. The Veteran has not specifically claimed that his hearing loss began during service or during the presumptive period, and he has not stated that he had symptoms of right ear hearing loss before he first sought treatment for his left (sic) ear hearing loss around the year 2000. However, he stated at his April 2019 Board hearing that he had periods of limited hearing after exposure to hazardous noise levels during service. While the Veteran is competent to report having experienced temporary hearing loss during service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a chronic hearing loss condition as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In November 2003 the Veteran was diagnosed with unilateral hearing loss in the left ear, with normal hearing in the right ear. In May 2015, a VA treatment provider diagnosed the Veteran with bilateral sensorineural hearing loss. The audiologist noted that the Veteran had been treated with chemotherapy for esophageal and stomach cancer in 2012 and suggested audiology testing pre and post chemotherapy in the future should it be a treatment option. In September 2015, VA provided an examination to determine the nature and etiology of any hearing loss. The examiner confirmed the diagnosis of bilateral sensorineural hearing loss. Because the Veteran did not claim onset of chronic right ear hearing loss during service or the one-year presumptive period and did not describe continuity of symptomatology since that period, the Board finds that his right ear hearing loss was not noted as chronic during service; did not manifest to a compensable degree within the presumptive period following separation from service; and, was not noted in service (or within an applicable presumptive period) with continuity of symptomatology since service. Therefore, the Board finds that service connection for right ear hearing loss as a presumptively service-connected chronic condition is not warranted. Service connection for right ear 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 right ear hearing loss and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran's periodic examinations as a member of the Army Reserves from January 1986 to January 1998 show some variation in the Veteran's right ear hearing test results, with pure tone audio thresholds ranging from 0 dB to as high as 25 dB between the frequencies of 500 Hz and 4000 Hz. The Veteran did not report any symptoms of hearing loss and did not receive any related diagnosis or treatment during this period. VA provided examinations in September 2015 and July 2020 to determine the nature and etiology of any hearing loss. Both VA examiners opined that the Veteran's right ear hearing loss was less likely than not related to his conceded in-service exposure to hazardous noise. The September 2015 examiner's rationale was that there was no hearing loss or permanent significant change in hearing thresholds greater than normal measurement variability during military service and that the Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The July 2020 examiner agreed with the September 2015 examiner that the variation shown in the Veteran's multiple audio test results was no more that would be expected based on test variability, and that this provided objective evidence that there was no permanent auditory damage caused to the Veteran's right ear by his conceded in-service exposure to hazardous noise levels. She explained that while the relationship of noise, auditory damage, and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. The November 2002 audio test results provided objective evidence that the Veteran's right ear remained undamaged well after his service in Vietnam and the associated hazardous noise exposure. The July 2020 examiner opined that the Veteran's chemotherapy in 2012, which occurred between his last normal right ear hearing test and his diagnosis of right ear hearing loss, was more likely the cause of his right ear hearing loss. While the Veteran believes his right ear hearing loss is related to an in-service injury, event, or disease, including his conceded in-service exposure to hazardous noise levels, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The combined opinions of the September 2015 and July 2020 VA examiners are probative because they are based on review of the Veteran's complete medical history and multiple in-person examinations and provide rationales consistent with the medical evidence of record. Furthermore, there is no competent medical opinion of record contradicting the combined opinions of the VA examiners. The Board therefore finds that the preponderance of the evidence is against the Veteran's claim for service connection for right ear hearing loss and the Veteran's claim is denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.