Citation Nr: 21029885 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-42 360 DATE: May 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence is against finding the Veteran's bilateral hearing loss was incurred in or the result of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss 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 1967 to September 1969. This appeal is before the Board of Veterans' Appeals (Board) from a December 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office. In September 2020, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. Additionally, in December 2020, the Board remanded the Veteran's claim for further development culminating in an April 2021 supplemental statement of the case continuing the denial of the claim. The Veteran's claim has since returned to the Board and for the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to service connection for hearing loss which he alleges is the result of in-service noise exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Regarding service connection claims for hearing loss, this disability is defined by regulation. Specifically, under the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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. Additionally, precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For certain chronic diseases, such as hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, the service personnel records (SPRs) do not reflect that the Veteran was ever assigned to funeral detail. The service treatment records (STRs) indicate his October 1967 induction examination included an audiological test which revealed the following results: Hertz 500 1000 2000 3000 4000 Right 0 0 5 5 0 Left 0 0 5 5 15 His August 1969 report of medical history indicates he did not voice any complaints related to hearing loss and his separation medical examination also included an audiological examination which revealed the following results: Hertz 500 1000 2000 3000 4000 Right 5 5 5 - 5 Left 5 5 5 - 15 Attached to his December 2017 NOD, the Veteran submitted a letter alleging his hearing loss is a result of his assignment to an in-service rifle team for funeral detail. During the Veteran's September 2020 Board hearing he alleged that he began experiencing hearing loss shortly after service and received treatment for his hearing loss in the 1980's and his doctor at the time said his hearing loss "could be the result of him being on the rifle team." He also indicated he was currently receiving treatment for his hearing loss at a private medical facility. In December 2020, the Board remanded the Veteran's claim for further development to include acquiring outstanding private treatment records. The RO attempted to acquire these records and sent him the required VA Forms 21-4142 and 21-4142a necessary to do so in December 2020; however, the Veteran did not respond to the RO's request. The RO sent a follow up request in January 2021; however, the Veteran again did not respond. As such, the private treatment records have not been acquired. However, the Veteran is reminded that the duty to assist is not a one-way street, meaning, notwithstanding the duty to assist, it remains the claimant's responsibility to submit evidence to support his claim. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In March 2021, the Veteran underwent a VA hearing loss and tinnitus examination report which included a review of the claims file, a recitation of complaints and medical history, and an audiological examination which indicated the following: Hertz 500 1000 2000 3000 4000 Right 80 80 70 70 70 Left 75 80 75 70 70 A Maryland CNC test was also conducted, and his right ear was 16 percent and his left ear was 64 percent. The Veteran subjectively reported the following: the onset of his hearing loss was in-service while serving "on the rifle team for funeral details," he denied having access to hearing protection and denied post-service occupational noise exposure. Ultimately, the examiner determined it was less likely than not his hearing loss was the result of active service, specifically opining: Entrance exam (10/30/1967) and separation exam (8/11/1969) demonstrated normal hearing from 500-6000 Hz with no significant positive threshold shifts from entrance to separation. Although the Veteran reports hearing difficulty began during service, a lack of positive threshold shifts during service is objective evidence of no permanent auditory damage on active duty from conceded noise in this ear. Although noise exposure is conceded and the relationship of noise, auditory damage, and hearing loss is well established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise exposure and not another etiology. The evidence is against a nexus in this case. Therefore, it is less likely than not that the current hearing loss is related to military noise exposure on active duty. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's hearing loss is related to his active service. As an initial matter, for certain chronic diseases, such as organic diseases of the nervous system, which includes sensorineural hearing loss, the Board first considers entitlement to presumptive service connection under the provisions of 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Here, the Veteran has essentially endorsed a continuity of hearing loss since service through his own statements. Although the Veteran is competent to report on such matters, the Board does not find his statements to be credible as they are inconsistent with the evidence of record. Indeed, the STRs are silent for treatment or complaints related to hearing loss and he did not indicate such symptoms during his August 1969 separation medical examination. It thus appears that the Veteran was not reporting hearing loss at a time when he now says that he had such symptoms, and this evidence tends to undermine any assertion of recurrent symptoms since service. While lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, the Veteran never replied to the RO's December 2020 and January 2021 requests for information. As such, the evidence of record is devoid of any credible medical evidence or opinion to support his allegations of hearing loss since service. For these reasons, and absent evidence to the contrary, the Board does not find the Veteran's assertions as to continuity to be credible. Based on the foregoing, the Board concludes that the Veteran's bilateral hearing loss was not shown as chronic in-service and did not manifest to a compensable degree within the applicable presumptive period; and continuity of symptomatology is not established. As to direct service connection, the Board recognizes the Veteran was diagnosed with bilateral hearing loss for VA ratings purposes. See 38 C.F.R. § 3.385. Thus, the first element of service connection is established. See Shedden, 381 F.3d at 1167. However, the evidence of record does not contain the second and third required elements; specifically, an in-service event and a medical nexus connecting his disability to his active duty service. As to an in-service event, although the Board concedes he was exposed to hazardous noise in-service, exposure to hazardous noise is not the same as suffering acoustic trauma. Indeed, the March 2021 VA examiner determined: no "significant positive threshold shifts from entrance to separation... Although the Veteran reports hearing difficulty began during service, a lack of positive threshold shifts during service is objective evidence of no permanent auditory damage on active duty from conceded noise in this ear." Thus, although the SPRs do not support his claim of funeral detail participation, the VA examiner determined the medical evidence of record does not indicate he suffered acoustic trauma from such alleged participation. Moreover, the evidence of record does not contain any competent or credible medical evidence or opinion to counter the March 2021 VA examiner's opinion that he did not suffer from acoustic trauma while in-service. As to a medical nexus, as previously stated, the Board attempted to acquire outstanding private treatment records; however, the Veteran failed to respond to the Board's requests. Moreover, although the Veteran stated a private physician in the 1980's told him his hearing loss "may be the result" of active service, this is far too speculative and unsupported to counter the March 2021 VA examiner. Furthermore, the Veteran was unable to provide any identifying information related to his alleged 1980's treatment for the Board to attempt to acquire these records. Indeed, the evidence of record is devoid of any competent or credible medical evidence indicating the Veteran's hearing loss is the result of active service. Moreover, the only evidence suggesting a nexus between the Veteran's disability and his active duty service are the Veteran's lay statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may have believed his bilateral hearing loss was related to active duty service and he is competent to report such symptomatology, the evidence of record does not contain any indication he had any medical training rendering his opinion as credible to make such a determination, which is medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are matters which are not capable of lay observation. As such, the Board finds the Veteran's contentions are of little probative value and the VA examiner's opinion being supported by the evidence of record, medical rationale, and sound service connection principles is thus of greater probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In conclusion, the preponderance of the evidence is against finding the Veteran's bilateral hearing loss is related to active duty service. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.