Citation Nr: 21030752 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-02 320 DATE: May 19, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The weight of the competent and probative evidence is against finding that the Veteran's current bilateral hearing loss for VA purposes had its onset during or is otherwise related to the Veteran's period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August 1966 to May 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in Winston-Salem, North Carolina in November 2019; a transcript is of record. Subsequently, this matter was remanded Board in February 2020 for additional development, to include scheduling an examination. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was scheduled for an examination. However, the Board also acknowledges the Veteran did not attend his examination. The evidence of record indicates he cancelled his examination. The evidence shows the Veteran stated that he would not schedule examinations as he is now rated at 100 percent disabled. The Board emphasizes that the duty to assist a claimant is not a one-way street, and in this case the Veteran has failed to aid in the development of his claim. Olsen v. Principi, 3 Vet. App. 480 (1992); Wood v. Derwinski, 1 Vet. App. 406 (1991); 38 C.F.R. § 3.655. While the Veteran cancelled his examination concerning the etiology of his bilateral hearing loss, he has not withdrawn his appeal. Therefore, the Board will adjudicate the claim based on the evidence of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In a claim of service connection for impaired hearing, demonstration of the first Shedden element, that is the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these 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. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for bilateral hearing loss. The Veteran asserts service connection for bilateral hearing loss to include as due to in-service noise exposure. The question for the Board is whether the Veteran has a bilateral hearing loss disability for VA purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that while the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, the preponderance of the evidence is against finding the disability is related to service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303. Initially, the Veteran has a diagnosis of bilateral hearing loss as noted at the February 2016 VA examination. As such, the first element of service connection is met. The Veteran's military occupational specialty was as a helicopter repairman, and he was likely exposed to high levels of noise during his active service. Additionally, he testified at the Board hearing regarding noise exposure during service. The Board finds such exposure to high-levels of noise to be consistent with the circumstances, places, and type of the Veteran's service. 38 U.S.C. § 1154(a). Additionally, the Board finds the Veteran competent and credible to describe the noise exposure. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In February 2012, his private medical records indicated that he had moderate progressive bilateral hearing loss over the past several years. He underwent an examination in February 2016. The examiner provided a negative nexus opinion. His military noise exposure was acknowledged. The examiner also reported occupational noise exposure after service to include car maintenance and machinery. The examiner stated that his entrance and exit examinations were normal and the Veteran did not have hearing related complaints at his exit examination. She explained the lack of significant threshold shifts indicated he did not suffer a noise injury, and there was no objective evidence to show military related noise injury even thought military noise was reported. The Board finds opinion to have some probative value, but it is reduced as the examiner relied on the Veteran's hearing loss not occurring immediately in service as demonstrated by threshold shifts. In this regard, the Board acknowledges that the U.S. Court of Appeals for Veterans Claims (CAVC) has held that where there is no evidence of the Veteran's claimed hearing disability until many years after separation from service, if the evidence "demonstrate[s] a medical relationship between the [V]eteran's in-service exposure to loud noise and his current disability, it would follow that the [V]eteran incurred an injury in service...." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Here, the Board remanded for an opinion to fully consider the above relationship between hearing loss and noise exposure in service. But the Veteran cancelled his examination to attempt to obtain a probative opinion. After review of the competent and probative evidence, the Board finds the preponderance of the evidence is against service connection for bilateral hearing loss. The Board acknowledges the Veteran's contentions that he believes his in-service acoustic trauma is the cause of his hearing loss, but he is not competent to provide a nexus statement in a matter involving a disease process like hearing loss. As such, statements in this regard lack weight. Moreover, there is no indication from the claims file, nor has the Veteran asserted, that his disabilities began during service, or manifested within one year after exiting service and continued. He did not contend that his hearing loss began during service or soon after he exited service. Additionally, his private treatment records indicate that his hearing loss had begun/worsened over the past several years which indicates the mid-2000s at the earliest well outside of the one year after his exit from service in 1969. There is also no positive nexus opinion of record. 38 U.S.C. § 5107(a). In sum, the preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability for VA purposes is related to his active military service. The competent and probative evidence weighs against a nexus to service. As such, reasonable doubt does not arise, and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.