Citation Nr: 21027273 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-34 148 DATE: May 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence of record shows that bilateral hearing loss was not manifested during, or a result of, active military service nor did it manifest within a year of separation. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1990 to May 1991, with service in Southwest Asia during the Persian Gulf War, as well as service in the U.S. Army National Guard from 1983 to 2007 with a three month active duty period between July 11, 1983 and October 6, 1983 and between October 19, 1990 and May 14,1991 as a personnel administrative specialist. This case comes before the Board on appeal of May 2015 rating decision. In September 2017, the Veteran had a hearing via live videoconference with the undersigned Veterans Law Judge (VLJ). A transcript of the proceedings has been associated with the record. This matter was previously before the Board in March 2019 when it was remanded for additional evidentiary development. In accordance with the Board remand directives, the Veteran was afforded a VA examination. The matter has returned to the Board for adjudication. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Bilateral sensorineural hearing loss is an organic disease of the nervous system and thus falls within 38 C.F.R. § 3.309 (a). See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (stating, "the Secretary has made clear that sensorineural hearing loss is considered subject to 3.309(a) as an '[o]rganic disease[ ] of the nervous system'".). Alternatively, for the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §§ 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. The VA considers impaired hearing to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a Veteran's period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis from a grant of service connection for hearing loss disability. See Hensley, 5 Vet. App. at 159. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F.3d at 1316. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, incurrence, or disease. The Veteran asserts entitlement to service connection for bilateral hearing loss. Specifically, the Veteran contends that his noise trauma occurred during service working near a motor pool, beating of the tire ring, and hitting on metal in the shop area. See September 2017 Hearing Transcript. The Veteran underwent an audiometer testing as a part of his entrance examination in February 1983. His results revealed his hearing was normal for VA purposes. His puretone decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 10 10 LEFT 15 15 10 15 10 The Veteran underwent an audiometer testing in October 1990. His puretone decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 5 LEFT 0 0 0 10 5 The Veteran underwent an audiometer testing in May 1991. His puretone decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 20 LEFT 10 15 20 25 25 The Veteran underwent an audiometer testing in March 1996. His puretone decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 30 LEFT 5 5 10 10 5 The Veteran underwent an audiometer testing in February 2001. His puretone decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 10 LEFT 10 5 10 25 10 In accordance with the March 2019 Board remand, the Veteran was afforded a VA examination in December 2019 to determine the manifestations and etiology of his bilateral hearing loss. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 35 50 LEFT 20 25 35 65 65 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear. The average decibel loss was 35 in the right ear and 48 in the left ear. The Veteran reported to the VA audiologist that his hearing loss makes it difficult to hear his wife and children as well as trouble hearing the TV and radio unless the volume is loud. Following examination, the VA examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by or a result of an event in military service. In support of this opinion, the VA examiner reasoned that all audiogram examinations revealed normal hearing bilaterally. The VA examiner noted the threshold shifts at 4000 and 6000 Hz in the Veteran's May 1991 audiogram but countered that his March 1996 and February 2001 audiograms indicated normal hearing with recovery at those frequencies. Thus, the threshold shifts were not permanent. The VA examiner further cited to research from the Institute of Medicine, showing that the effects of noise are immediate, finite, and do not cause any delayed onset of threshold shifts or symptoms. Thus, due to the Veteran's stable thresholds between enlistment and the final audiogram in February 2001, there is no objective evidence that acoustic trauma occurred during the Veteran's military service as a result of loud noise exposure. In considering the evidence of record under the laws and regulations above, the Board finds that the Veteran's current bilateral sensorineural hearing loss is not due to an in-service injury, incurrence, or disease. Therefore, it does not warrant granting service connection. First, the audiometric test results of record during the appeal period do show the Veteran has sensorineural hearing loss with auditory thresholds of 40 decibels or greater, or 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000. 38 C.F.R. § 3.385. Thus, the competent evidence of record establishes that the Veteran has bilateral hearing loss that meets the VA criteria for disability. However, a Veteran seeking disability benefits must establish not only the existence of a present disability, but also a connection (nexus) between his service and the disability. See Shedden, supra. Review of the record reveals that the Veteran's military occupational specialty (MOS) was as a personnel administration specialist. At his September 2017 hearing, the Veteran testified that his main position during active duty service was clerical in nature. The Veteran did explain, however, that he was often loaned out to work in the motor pool and in the kitchen during service. He testified that he was exposed to noise in the motor pool, when he had to beat out a tire ring or hit on metal in the shop area. He explained that he did not use hearing protection while he worked in the motor pool. Likewise, the Veteran testified that he was exposed to noise in the kitchen, which included the bangs of pots and pans. Additionally, he added that he was exposed to noise when he practiced on the shooting range, but he always wore hearing protection. Post-service, the Veteran worked the production line at Chrysler in 1993. The Veteran worked on the production line at Chrysler for 24 years. Therefore, there is an intercurrent cause to explain the Veteran's hearing loss. The Veteran explained that although the production line entailed loud noise, he was required and wore hearing protection daily throughout his 24 years working. See September 2017 Hearing Transcript. He stated that his hearing decreased gradually since service, but he did not notice it until three or four years after service. Id. The Board has considered the Veteran's statements and finds him competent to report his hearing loss symptoms and exposure to noise in service. However, the determination of whether the Veteran's current hearing loss is related to in-service noise exposure is a complex medical question that requires audiological expertise. Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316. A review of the Veteran's medical records does not relate his current hearing loss to noise exposure in service. The Board gives great probative weight to the opinion of the VA examiner. The audiologist conducted a thorough audiological examination; analyzed audiometric findings; considered lay evidence; and supported the conclusion that it is reasonable to conclude that the Veteran's bilateral hearing loss is less likely as not related to the Veteran's military service. The audiologist also noted the Veteran's threshold shifts at 4000 and 6000 Hz in his May 1991 audiogram and explained that it was not permanent, citing to the Veteran's later audiograms and providing a well-reasoned and researched rationale. The medical evidence also does not suggest any manifestation of bilateral hearing loss within a year of separation. Furthermore, the Veteran himself has stated that he did not notice any hearing loss until at least three years post-service. See September 2017 Hearing Transcript. As such, there is no evidence of record to warrant granting service connection for bilateral sensorineural hearing loss on a presumptive basis. 38 C.F.R. § 3.309. Thus, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for bilateral sensorineural hearing loss, and there are no doubts to be resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.