Citation Nr: 21031753 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-40 677 DATE: May 24, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss did not have its onset in service, is not otherwise related to an in-service injury or disease and did not manifest to a compensable degree within a year after separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. Service Connection Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For purposes of applying the laws administered by VA, the criteria for hearing impairment to be considered as a disability is when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that bilateral hearing loss due to noise exposure in service. Specifically, the Veteran asserts that he worked in the US Army Transportation Motor Pool in Kansas and Germany. He worked on all transportation vehicles regularly without the exhaust system attached on these vehicles and did not have hearing protection available. He asserted he did not have a proper hearing examination when he was transferred back to the US at Fort Dix, New Jersey. He stated that since he has separated from the military he has worked in several jobs, but the only noisy job was an electrician at a steel mill and, although it was not very noisy, he was still required to wear proper hearing protection. In this case, the Board finds that service connection for bilateral hearing loss is not warranted. The Board has first considered whether service connection for hearing loss is warranted on a presumptive basis, to include on the basis of continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested such a condition to a compensable degree during service or within the year following his discharge from active duty service. Service treatment records are negative for complaints, treatments or diagnoses related to hearing loss, to include separation audiogram dated in February 1976. Hearing loss for VA purposes in the was not shown in the left ear until the June 1998 private audiological evaluation, and in the right ear until the June 2005 private audiological evaluation. Therefore, the Board finds that presumptive service connection for hearing loss as an organic disease of the nervous system, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, the November 2020 VA examiner's opinion establish that the Veteran's bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure. The VA examiner determined it is less likely than not that the Veteran's current hearing loss is related to his military service. The examiner noted that despite working in a steel factory for 19 years requiring hearing protection and in a ship yard barge company for 10 years requiring hearing protection, the Veteran's lay statement indicates he cannot think of anything other than the military that could have caused hearing loss. He also did not recall having a separation audiogram and felt his separation was rushed. However, the examiner noted that the Veteran's claims file includes a separation audiogram. An audiogram is an objective test requiring feedback from the patient which prevents it from being rushed. The Veteran was in a noisy environment for 29 years after the service. While in the service, he had an enlistment audiogram (although 3 kHz was not examined). However, his separation audiogram four years later did not show any significant shifts, and his hearing at 3 kHz was 5 dB HL in both ears at separation which is well within normal limits for hearing. His audiogram shows no shifts of 15 dB or greater. The reason 15 dB is used is because intertest variability can be 10 dB. Based on the objective data, although noise is conceded the examiner found there is no evidence it was sufficient to cause acoustic trauma. The examiner referred to medical treatises suggesting a delayed onset hearing loss in animal models. However, he noted that this has not been confirmed in humans, nor is it the accepted position regarding hearing loss. Regardless, the Veteran continued to have noise exposure for another 29 years after the service so any concern regarding a delayed is a moot point. The noise exposure after the service would have been sufficient to cause hearing loss based on the description of requiring hearing protection. 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 Board notes that the Veteran underwent VA examinations in April 2015 and September 2019, and the examiners found the Veteran's hearing loss was less likely than not due to service. However, the Board found these examinations inadequate in the December 2018 and June 2020 remands and affords them less probative weight. The Board has also considered the Veteran's statements in support of his claims. While he was competent to report his in-service acoustic trauma and describe his symptoms, the Board finds he was not competent to offer an opinion as to whether such disorders are related to any instance of his service since he did not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology of his hearing loss, and, consequently, his opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, based on a thorough review of the electronic claims file, the Board finds that the preponderance of evidence rests against the Veteran's claim. Accordingly, the Veteran's appeal seeking service connection for bilateral hearing loss must be denied. The benefit of the doubt doctrine is not application here as the preponderance of the evidence rests against the Veteran's claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.