Citation Nr: 21051047 Decision Date: 08/18/21 Archive Date: 08/18/21 DOCKET NO. 18-01 749 DATE: August 18, 2021 ORDER Entitlement to service connection for a left ear hearing loss disability is denied. FINDING OF FACT A left ear hearing loss disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and there is insufficient competent and credible evidence that a left ear hearing loss disability was caused by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1963 to November 1965. In May 2019, he testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the claim for additional development in May 2020 and the matter again is before the Board. In addition to the issue listed above, the May 2020 remand included multiple other issues. All these issues, including entitlement to service connection for a right ear hearing loss disability, were granted in full in a May 2021 rating decision. As such, further consideration of those issues is not warranted. 1. Entitlement to service connection for a left ear hearing loss disability Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. Certain diseases, to include organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran was diagnosed with a left ear hearing loss disability within one year of service the above provision is not applicable. To establish a right to compensation for a present disability, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his current left ear hearing loss disability is the result of in-service noise exposure while doing radio work in close proximity to the flight line. The Veteran's service treatment records do not include complaints, treatment, or diagnoses of a left ear hearing loss disability or symptoms related thereto. In September 1965, the Veteran complained of pain in the right ear for the last few months. There was not a large amount of wax observed on examination. An October 1965 audiogram showed normal left ear hearing acuity with decreased left ear hearing acuity. After service, in July 2011, October 2011, November 2012, and May 2014 the Veteran denied any hearing difficulties. A May 2014 hearing evaluation was normal. A May 2017 private audiogram showed a left ear hearing loss disability for VA purposes. A September 2017 hearing loss disability benefits questionnaire (DBQ) included an audiogram showing a bilateral hearing loss disability for VA purposes. The examiner concluded that it was not at least as likely as not that the Veteran's left ear hearing loss disability was caused by or a result of service. The rationale noted that the Veteran served for 2 years in the military with an MOS of Radio Relay Carrier Attendant, which was a moderate probability for hazardous noise exposure. The Veteran had a normal audiogram at entrance into service and at separation from service. There were no permanent threshold shifts of significance. The current left ear hearing loss disability was more consistent with presbycusis. The hearing loss would cause difficulty hearing conversations in all listening environments. In an October 2017 statement, the Veteran noted that hearing loss and balance problems were documented in September October 1965. During the Veteran's May 2019 Board hearing, he testified that during service he was exposed to loud noises on a daily basis, as the radio sites were at the air base on the periphery of runways and other noisy areas. The Veteran noticed decreased hearing acuity during service and did not wear hearing protection. During service, he sought treatment for hearing problems and the treatment provider diagnosed hearing loss and balance problems, with fused bones in one ear. After service, the Veteran "put up with hearing loss for quite a while." Ultimately, his wife convinced the Veteran to get a hearing test and bought hearing aids in approximately 2005. The Veteran underwent a VA hearing loss examination in October 2020. The examiner noted the in-service September 1965 complaint of right ear pain for a few months. Audiogram testing showed a bilateral hearing loss disability for VA purposes. The Veteran reported trouble hearing without hearing aids and would be shouting with his wife if he did not wear the hearing aids. The Veteran's right ear was much worse than his left ear. The Veteran had experienced balance issues intermittently since service and had trouble hearing people who were wearing masks. Following examination, the examiner concluded that it was not at least as likely as not that the Veteran's left ear hearing loss disability was caused by or the result of service. The rationale noted that the Veteran had normal hearing during both enlistment and separation audiograms. Although the Veteran was exposed to loud noises during service, the examiner stated that he maintained normal hearing for the left ear at the end of his service, therefore, it was less likely than not that hearing loss in the left ear was due to military noise exposure. Thus, the Veteran has a current left ear hearing loss disability for VA purposes. That said, the Board concludes that the left ear hearing loss disability had its onset multiple years after service and is not otherwise caused by service. In reaching that opinion, the Board finds the combination of the September 2017 and October 2020 VA examination reports of significant probative value. The September 2017 examiner found that the Veteran's left ear hearing loss disability was due to presbycusis (or the slow loss of hearing due to age). The October 2020 VA examiner considered the Veteran's allegations of ongoing hearing problems from service, but while finding that the right ear hearing loss disability had its onset in service that the left ear hearing loss disability was unrelated to service because the Veteran consistently had normal left ear hearing acuity on multiple in-service audiograms, including at separation from service. The Board finds the foregoing opinions the most probative evidence of record as to whether the current left ear hearing loss was incurred in or otherwise caused by service. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as hearing loss, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, neither left ear hearing loss nor an organic disease of the nervous system was noted during service, including at the time of examination shortly before separation from active service. Indeed, prior to separation the Veteran explicitly denied a history of ear trouble prior to separation from service. Moreover, he denied hearing difficulties on numerous occasions between 2011 and 2014. Thus, while the Veteran claimed during his May 2019 Board hearing that he had ongoing hearing problems that began in service, he denied ear problems at separation from service and had multiple denials of hearing difficulties between 2011 and 2014. As such, the Board finds that there is no credible contention of a continuity of decreased left ear hearing acuity or hearing loss from service. Thus, the provisions of 38 C.F.R. § 3.303(b) are not for application. As to the Veteran's general contentions that his left ear hearing loss disability was incurred in or is otherwise caused by his service, the Board finds his opinions to be of limited probative weight. His report of noise exposure during service is accepted as credible because it is consistent with his duties and circumstances of service. Although the Veteran is competent to report decreased hearing acuity, he has made inconsistent reports of decreased hearing acuity over time. As noted, he specifically denied ear problems at separation from service and denied hearing difficulties on multiple occasions between 2011 and 2014. The Board finds it reasonable to conclude that had he been experiencing ongoing left ear hearing problems from service that he would have reported such symptoms when specifically asked. Given these inconsistencies, the Board affords the Veteran's allegations of a continuity of decreased left ear hearing acuity from service no probative weight. Given the absence of credible contentions of a continuity of symptomatology from service and the Veteran's lack of education, training, and experience in regards to diagnosing a left ear hearing loss disability and relating such disability to noise exposure occurring years prior to the diagnosis and onset of symptoms, the Board affords his representations as to a relationship between his current left ear hearing loss disability and in-service noise exposure extremely limited probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, no medical professional has found that the Veteran's left ear hearing loss disability was caused by service. The lay evidence associating the left ear hearing loss disability to service is substantially outweighed by the medical evidence of record. In light of the evidence, the Board concludes that the preponderance of the credible evidence is against the left ear hearing loss claim, and that service connection for a left ear hearing loss disability is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.