Citation Nr: 21040861 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-55 842 ATE: July 7, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. Left ear hearing loss disability is not shown in service or within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. Right ear hearing loss disability is not shown in service or within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left ear hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for right ear hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In March 2021, the Board remanded the issues as noted above as well as the issues of entitlement to service connection for a bilateral foot disorder and tinnitus. In a May 2021 rating decision, the RO granted service connection for bilateral pes planus and tinnitus. Thus, these issues are no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). 1. Entitlement to service connection for left ear hearing loss is denied. 2. Entitlement to service connection for right ear hearing loss is denied. The Veteran, and his representative, contend that his hearing loss disability is due to military noise exposure. Specifically, the Veteran argues that his current hearing loss disability stems from hazardous noise exposure in service. He stated he worked around a lot of heavy equipment, jets, and impact tools during active duty, and did not wear hearing protection. He asserts that he noticed the hearing loss during service. See Hearing Transcript (February 2020). The Board concludes that the preponderance of the evidence is against finding that the Veteran's right and left ear hearing loss disability had onset in service or manifested to a compensable degree within the applicable presumptive period; or that there is continuity of symptomatology; or that the disability is otherwise etiologically related to in-service injury or disease, to include in-service noise exposure. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. As an initial matter, the Board notes that the Veteran has a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385; C&P Exam (April 2021). The Veteran's personnel records reflect a military occupational specialty (MOS) of outside wire and antenna and maintenance repairman. See Certificate of Release or Discharge From Active Duty (October 2014). In-service noise exposure is thus conceded. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For organic diseases of the nervous system (e.g. sensorineural hearing loss), the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The threshold for normal hearing is from 0 to 20 decibels. Hensley, 5 Vet. App. 155 Service treatment records (STRs) reflect no complaints or findings for hearing loss. There was normal hearing at entrance and discharge. See STR Exam Entrance (March 2015); Military Personnel Record (March 2015). The Veteran denied hearing loss at service discharge. See Military Personnel Record (March 2015). VA medical records dated from 2015 to 2020 show notations of a hearing deficit. See CAPRI (September 2016); CAPRI (July 2020); CAPRI (September 2020). In a June 2015 VA examination report, the examiner noted that the Veteran's military noise exposure included firearms on the shooting range, machinery, and power tools, and post-service noise exposure included his employment in construction and as a pipefitter. The examiner opined that it was at least as likely as not that the hearing loss was not related to noise exposure during service. The examiner reasoned that the entrance and separation examinations showed normal hearing and there were no reports of hearing loss observed in the Veteran's service treatment records. See C&P Exam (August 2015). The Board found this opinion inadequate as it essentially focused only on normal hearing at discharge and did not address delayed onset hearing loss. See BVA Decision (April 2021). An April 2021 VA examination was conducted upon review of the claims file. The examiner opined that hearing loss was unrelated to service, reasoning that although the Veteran's MOS contemplated a moderate probability of hazardous noise, there were no notable threshold shifts during service, and there was normal hearing at discharge. However, the examiner also reasoned that the hearing loss was unrelated to active duty as there was either normal hearing or mild hearing loss at the June 2015 VA examination decades after discharge, evidence of post-service noise exposure, and that the severity of the current hearing loss was within the normal progression for the Veteran's age. See C&P Exam (April 2021). The Board finds that the most probative evidence of record demonstrates that the Veteran's right and left ear hearing loss are not related to active service. The Board assigns significant probative value to the April 2021 VA examiner's opinion. This is because it was based upon review of the medical evidence, conceded the Veteran's noise exposure, and provided a thorough supporting explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Although the examiner noted the presence of normal hearing at discharge, they also addressed the lack of significant threshold shifts during service, the presence of post-service noise exposure, and the mild nature of the hearing loss which was more indicative of the normal progression of hearing loss. See Stefl, 21 Vet. App. at 124. The opinion is therefore probative and weighs against the claim. Although the Veteran is competent to describe his hearing loss symptoms and the onset thereof, he is not competent to establish the existence of a hearing loss disability as defined by 38 C.F.R. § 3.385 in service or to formulate a competent medical opinion linking delayed onset hearing loss to active service, including noise exposure. This is a complex medical determination that cannot be answered based on observation or analysis of a layperson. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Indeed, the delayed onset of hearing loss is an intricate matter that requires an understanding of the body's hearing mechanism, disease processes, and signs/symptoms of injury to those mechanisms. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, the Board finds that the Veteran's opinion has no probative value in this matter. To the extent continuity of symptomatology since service is argued, the Board finds the lay statements of record not credible. The Veteran denied hearing loss at discharge, which is in conflict with this Board testimony that he noticed hearing loss during active duty. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this instance, the reliable post-service evidence does not show continuity of hearing loss symptoms, or evidence of hearing loss within one year of discharge from active duty. Considering the above lay and medical evidence, the Board finds the lay assertions of continuity of hearing loss symptomatology are not credible and, therefore, do not provide a basis to establish service connection. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.