Citation Nr: 21028247 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-36 692 DATE: May 10, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran's right ear hearing loss did not manifest during or within one year of separation from service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 2001 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board for further development in October 2018. The matter returns for appellate consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection for right ear hearing loss is denied. The Veteran seeks service connection for right ear hearing loss, which he believes is due to his exposure to noise while serving as a unit supply specialist. He reported exposure to loud weapons at the gun range while serving in Fort Irwin, California and that his hearing worsened since 2002. See November 2015 Notice of Disagreement (NOD). For purposes of applying the laws administered by VA, impaired hearing is considered a disability for compensation purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board has reviewed the evidence and finds that the Veteran did not have a hearing loss disability for VA purposes during or at separation from service. The entrance examination, completed in October 2000, shows that the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 0 On the accompanying report of medical history form, the Veteran denied having ear trouble and hearing loss. Continued on the next page A January 2002 in-service reference audiogram shows that the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 10 The January 2002 audiogram also noted routine noise exposure and to see "IH Report for Noise Levels, H-1." A January 2002 Preventative Health Assessment demonstrates the Veteran was issued hearing protection. A March 2003 emergency room visit indicates the Veteran's ears were assessed as normal. An undated Medical Examination for Separation Statement for Option does not indicate whether an examination was administered but reflects the Veteran was cleared for separation. Based on the foregoing and available service records, the Veteran did not have a hearing loss disability for VA purposes at any time during service. However, this is not fatal to the claim. Hensley, 5 Vet. App. at 159. In any case, the Board acknowledges the Veteran's competent and credible statements as to noise exposure in service. Unfortunately, the evidence dated since service does not support a finding of hearing loss symptoms since service, that hearing loss manifested within one year of separation from service, or that his hearing loss is otherwise related to service. A May 2013 VA treatment record reflects the Veteran's contentions that his hearing loss is not as good as it was prior to service. The Veteran was afforded a VA examination in October 2015. The examination reflected a right ear hearing loss disability for VA purposes as the auditory threshold for more than one frequency was greater than 40 decibels. The examiner diagnosed right ear sensorineural hearing loss. The examiner provided a negative nexus opinion for the Veteran's right ear hearing loss based upon the lack of complaints or diagnosis for hearing loss until 2015, no in-service documentation in the claims file for acoustic trauma, and low probability of noise exposure based on the Veteran's military occupational specialty (MOS). In July 2016, the Veteran reported that his hearing loss occurred after his 2002 audiogram where he was issued ear plugs and believes his hearing loss is attributable to frequent attendance at the gun range at Fort Irwin. He also reported that the ear plugs did not fit properly and that his hearing has suffered since. In March 2019, the Veteran reported that Fort Irwin is a major National Training Center and he was constantly exposed to heavy weaponry and heavy machinery and participated in weekly artillery rounds at the range. The Veteran was afforded another VA examination in May 2019. The examination reflected a right ear hearing loss disability for VA purposes as the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater. The examiner diagnosed right ear sensorineural hearing loss. The examiner provided a negative nexus opinion for the Veteran's right ear hearing loss based upon the fact that there was no evidence or complaints of hearing loss within a reasonable time post active duty. The examiner noted the Veteran's MOS as a supply specialist and noise exposure with weapons and tanks. The examiner also indicated that the Institute of Medicine (IOM) concluded that noise induced hearing loss occurs immediately with no evidence to support delayed onset on noise induced hearing loss years after the exposure. An August 2019 VA addendum opinion was obtained. The examiner opined that the Veteran's MOS of a supply specialist assigned to a tank unit is conceded due to significant noise exposure; however, the Veteran's hearing loss configuration is not consistent with noise exposure such that configuration of hearing loss is flat, which is not a configuration that is expected based on noise exposure. The examiner noted that records do not support that retrocochlear pathology has been ruled out but also do not support a history of an ear disease or pathology. The examiner concluded it is unclear at this time of the exact etiology of the Veteran's hearing loss, but it is less likely than not due to noise exposure and also less likely than not due to service given the lack of supporting records for an alternative pathology. As noted above, the Veteran has a current diagnosis of right ear sensorineural hearing loss; however, the Board is unable to find a nexus between the Veteran's current right ear hearing loss disability and service. The Board finds the most recent May and August 2019 addendum opinions are of significant probative value. The opinion was based on a review of the claims file, audiological examination findings, and IOM based standards in the medical community. The examiner found no relationship between the current right ear hearing loss disability and service, to include noise exposure therein. The opinion was supported with a thorough rationale, as discussed above. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as hearing loss, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, the Veteran had normal hearing acuity during service, even though a separation examination was not provided, and there is no demonstrable hearing loss disability until more than 11 years following separation from service. The Board acknowledges that in his November 2015 NOD, the Veteran indicated that he was exposed to noise hazards while at the National Training Center, Fort Irwin but did not report it to his superiors because they were "always angry" and that his hearing has diminished since 2002. While he is competent to describe his symptoms and report continuity of symptomatology during and since service, a hearing loss disability for VA purposes is based on whether the level of hearing acuity at multiple frequencies meets the criteria of 38 C.F.R. § 3.385. In light of the normal audiogram testing during service and normal ear evaluation upon an emergency room visit in March 2003 after the Veteran's noise exposure and a denial of a history of hearing loss at least up until separation from service, the Board does not find that lay reports of continuity of symptomatology are credible in light of the mechanical nature of determining a hearing loss disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As far as whether the Veteran's right ear hearing loss disability was incurred in or related to service, the Board finds that the May and August 2019 VA opinions are the most probative and credible evidence of record regarding the nexus between the Veteran's right ear hearing loss and service. Although the Veteran may be competent to report decreased hearing acuity, such lay evidence is far less reliable than the objective testing prepared by skilled professionals. As such, the Board finds that the May and August 2019 VA medical opinions outweigh the Veteran's contentions as to etiology. In light of the evidence, the Board concludes that the preponderance of the credible evidence is against the claim, and that service connection for right ear hearing loss is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.