Citation Nr: 21027898 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-22 449A DATE: May 7, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding that bilateral hearing loss began during active service, manifested within a year of service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 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 October 1962 to November 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2019 and November 2020. There has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the matter, in part, for the RO to make appropriate attempts to obtain the Veteran's service treatment records, and in particular, a service separation audiogram examination. However, the Veteran was administratively discharged from service, and his July 1964 administrative discharge examination is of record. A review of the record shows that the Veteran's service treatment records, including his entrance and discharge examinations, have been obtained. Thus, the Board finds that VA has satisfied the duty to assist in obtaining the Veteran's service treatment records, including his discharge examination. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to service connection for bilateral hearing loss The Veteran asserts that his current bilateral hearing loss is due to his in-service exposure to hazardous noise. Specifically, he states that his primary job in the Air Force was as a civil engineer working on plumbing and welding all over the base, as well as on the flight line, and that he was "constantly" around airplanes that were taking off and landing and that he did not have proper hearing protection. He also stated he was not exposed to any hazardous noise post-discharge from service. See May 2017 Statement in Support of Claim. Further, he stated that his work on the flight line contributed to his hearing loss. See September 2016 Notice of Disagreement. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, such as sensorineural hearing loss, as an organic disease of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection based on continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The first service connection element, the existence of a present disability, has been met, as the Veteran was diagnosed with bilateral hearing loss sufficient to meet VA disability standards. See May 2016 VA examination report, discussed below. The Board also finds that the Veteran was exposed to hazardous noise in-service, and thus, the second element, an in-service incurrence of a disease or injury is also established. The RO generally acknowledged that the Veteran experienced hazardous noise exposure in service but denied entitlement to service connection based on a finding that there is no nexus between his in-service hazardous noise exposure and his service. See June 2016 rating decision. The Veteran's DD-214 shows that he was a plumbing specialist, which is consistent with his statements regarding noise exposure. Further, the May 2016 VA examiner, who conducted an in-person examination, found that the Veteran's report of in-service hazardous noise exposure was credible. Thus, the second service connection element, an in-service incurrence or aggravation of a disease or injury has been met. The remaining issue is whether there is a nexus between the Veteran's current bilateral hearing loss and his in-service exposure to hazardous noise. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and the evidence shows that he experienced in-service hazardous noise exposure, the preponderance of the evidence weighs against finding that the his bilateral hearing loss disability is due to the in-service hazardous noise exposure. The first evidence of record showing a bilateral hearing loss disability for VA purposes is at the May 2016 VA examination, which is over five decades after his separation from service. The Veteran also submitted a September 2015 private audiogram received in February 2016 which appears to show bilateral hearing loss, although it does not conform to VA standard for purpose of determining VA disability. Regardless, the first evidence of the Veteran's current bilateral hearing loss disability is over 50 years post-separation from service. While the length of time between discharge from service and diagnosis of a disability is not dispositive, it is for consideration, and weighs against the current claim. Further, the May 2016 VA examiner opined that the Veteran's bilateral hearing loss disability is not at least as likely as not related to an in-service injury, event, or disease, including conceded in-service hazardous noise exposure. The examiner's rationale was that the Veteran's service treatment records, including his June 1964 administrative discharge examination, show normal hearing bilaterally with no significant shifts in thresholds from the time of his entrance examination. Further, the examiner stated that the 2006 Institute of Medicine report stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The August 2020 VA examiner, who reviewed the record and provided an addendum opinion, opined that it is less likely than not that the Veteran's bilateral hearing loss is caused by or a result of military noise exposure. As rationale, the examiner cited the 2006 Institute of Medicine report findings, as well as the fact that the Veteran's service treatment records show no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. In March 2021, the examiner who conducted the August 2020 VA examination provided an additional addendum opinion. The examiner reviewed the record again and opined that it is less likely than not that the veteran's bilateral hearing loss was caused by or a result of military noise exposure while the Veteran was on active military duty. As rationale, the examiner reiterated that the Veteran's service treatment records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service, there was no record of complaint or treatment for hearing loss in the service records, and that the 2006 Institute of Medicine report stated there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The May 2016, August 2020 and March 2021 VA examiners' opinions are highly probative evidence that the Veteran's bilateral hearing loss disability is not at least as likely as not related to an in-service injury, event, or disease, including in-service hazardous noise exposure and, as such, weigh heavily against the claim. The combined rationale is that the Veteran's service treatment records, including his administrative discharge examination, do not show any hearing loss or significant changes in hearing thresholds and that the 2006 Institute of Medicine report found that there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiners' combined opinions are probative, because they are based on an accurate medical history and provide explanations that contains clear conclusions and supporting data. Id. The Veteran believes that his bilateral hearing loss disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the May 2016 and August 2020 VA examiner's opinions. As there is no competent evidence of record linking the Veteran's bilateral hearing loss disability to his in-service noise exposure, the third element of service connection has not been met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal of entitlement to service connection for bilateral hearing loss is denied Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.