Citation Nr: 21041247
Decision Date: 07/08/21	Archive Date: 07/08/21

DOCKET NO. 16-59 635
DATE: July 8, 2021

ORDER

Service connection for bilateral hearing loss is denied.

FINDING OF FACT

The Veteran's bilateral hearing loss was not shown in service or for many years thereafter and is not otherwise etiologically related to active duty service.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1971 to October 1972.

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110.  Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).

Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service.  38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  This presumption is rebuttable by affirmative evidence to the contrary.  Id.  Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).

1. Entitlement to service connection for bilateral hearing loss

The Veteran contends that service connection for bilateral hearing loss should be granted.  Specifically, he asserts that service connection for bilateral hearing loss should be granted because he began experiencing bilateral hearing loss during his active duty service.  Also in support of his claim, he asserts that his bilateral hearing loss has been continuous since his active duty service and that he was not exposed to noise in his employment after service, further showing that service connection should be granted.  

In addition to the above, service connection for a current hearing loss disability is not precluded by 38 C.F.R. § 3.385 where hearing was within normal limits on audiometric testing at separation from service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  Rather, when audiometric test results from a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155 (1993).

Where the requirements for a hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385.  Hensley, 5 Vet. App. at 155.  If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385, then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes.  Hensley, 5 Vet. App. at 159.

After a review of the evidence of record, the Board concludes the preponderance of the evidence weighs against finding that service connection is warranted for bilateral hearing loss.  38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Initially, the Board notes that it is willing to accept the Veteran's assertions that he was exposed to acoustic trauma as an armored crewmember.  However, the in-service medical records fail to show that his bilateral hearing loss was incurred in or is otherwise etiologically related to his active duty service.  First, his service treatment records do not reflect any complaints, signs, symptoms, or a diagnosis related to bilateral hearing loss.  Next, the evidence fails to show a threshold shift in his hearing during his active duty service.  Here, his entrance examination reflects he underwent an audiological examination and that his pure tone thresholds in his right ear were 15 decibels (dB) at 500 Hertz (Hz), 5 dB at 1000 Hz, -5 dB at 2000 Hz and 50 dB at 4000 Hz, and that his pure tone thresholds in his left ear were 10 dB at 500 Hz, -5 dB at 1000 Hz, 5 dB at 2000 Hz, and 25 dB at 4000 Hz.  The report from his separation examination also reflects that he underwent an audiological examination and that his pure tone thresholds in his right ear were 10 dB at 500 Hz, 10 dB at 1000 Hz, 25 dB at 2000 Hz, and 10 dB at 4000 Hz, and that his pure tone thresholds in his left ear were 10 dB at 500 Hz, 10 dB at 1000 Hz, 15 dB at 2000 Hz, and 10 dB at 4000 Hz.  When comparing the audiological examinations performed at his entrance and separation examinations, the pure tone thresholds in his right ear improved by 5 dB at 500 Hz, worsened by 5 dB at 1000 Hz, worsened by 30 Hz at 2000 Hz, and improved by 40 Hz at 4000 Hz, and the pure tone thresholds in his left ear remained the same at 500 Hz, worsened by 15 dB at 1000 Hz, worsened by 10 dB at 2000 Hz, and improved by 15 dB at 4000 Hz.  Given that a comparison shows that the only significant worsening of the Veteran's hearing occurred in his right ear, where the pure tone threshold worsened by 30 dB, that his hearing improved bilaterally at 4000 Hz and in his right ear at 500 Hz, and that the worsening of hearing at the other frequencies was not significant.  Accordingly, it is withing the ability of the Board to conclude that hearing loss was not aggravated by service. 

Next, although the Veteran contends that he has experienced bilateral hearing loss since his separation from active duty service, the treatment records do not indicate any issues related to bilateral hearing loss until October 2011, approximately 39 years after his separation from service.  Therefore, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for bilateral hearing loss is not warranted because the evidence does not show that bilateral hearing loss manifested to a degree of 10 percent or more within a year of separation from active service.  See 38 C.F.R. § 3.307(a).

The Board observes that the Veteran is competent to report symptoms of bilateral hearing loss.  However, the medical evidence fails to demonstrate a continuity of symptomatology because the record contains no post-service clinical evidence concerning complaints of or treatment for bilateral hearing loss until approximately 39 years after his separation from active duty service.  To the extent that the Veteran has indicated that he first began experiencing hearing loss during his active duty service, the Board finds his statement is entitled to less probative weight because he did not seek treatment until approximately 39 years after his separation from service and, as set forth above, only the pure tone threshold shifts did not establish that his hearing loss was aggravated by his active duty service.  Accordingly, service connection for bilateral hearing loss is not warranted based on continuity of symptoms.

Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints.  In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's bilateral hearing loss or his tinnitus to his active duty service, despite his contentions to the contrary.

As an initial matter, there is no objective evidence linking the Veteran's bilateral hearing loss to his active duty service.  The Board also places significant probative weight on the opinions of the December 2019 VA examiner.  Based on a review of the claims file and an in-person examination that included an audiological examination, the examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service.  In support of the opinion that his bilateral hearing loss was not caused by or a result of an event in military service because although his military occupational specialty was known to have had a high probability of hazardous noise exposure, his service treatment records did not indicate a significant threshold shift for either ear during military service.  Specifically, the examiner explained that the Veteran's audiological evaluations at his entrance to and separation from service showed that he had hearing within normal limits bilaterally, indicating that it was less likely than not that his bilateral hearing loss was caused by or a result of an event in military service.    

The Board concludes that the examiner's opinion is highly probative, entitled to substantial weight, and shows that the Veteran's bilateral hearing loss is not etiologically related to his active duty service given the well-supported rationale provided by the examiner, the examiner's expertise, the examiner's in-person examination, and the examiner's review of the claims file.  Additionally, the Board notes that the Veteran has not provided any evidence, including private opinions and/or medical evidence to establish a nexus between his bilateral hearing loss and his active duty service.

The Board has also considered the statements made by the Veteran relating his bilateral hearing loss to active duty service.  The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, although the Veteran can provide competent testimony regarding symptoms of hearing loss, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion.  See Jandreau, 492 F.3d at 1377, n.4.  Thus, to the extent that the Veteran believes that his bilateral hearing loss is related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion.  

By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim seeking service connection for bilateral hearing loss.  Accordingly, the Veteran's appeal is denied.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  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.

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Crosnicker, Associate Counsel