Citation Nr: 22010513 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 11-01 473 DATE: February 23, 2022 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT A left ear hearing loss disability was not shown in service or for many years thereafter, and the most probative evidence is against a finding that the current disability is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was last before the Board in November 2020 and has returned to the Board for further appellate review. 1. Entitlement to service connection for left ear hearing loss The Veteran seeks service connection for left ear hearing loss, which he asserts was caused by in-service noise exposure. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a veteran has served continuously for 90 days or more during active service, and sensorineural hearing loss becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). As an initial matter, the Board finds that the Veteran has a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385, as shown by a November 2019 VA examination. Additionally, in-service noise exposure is conceded. Thus, the question becomes whether the Veteran's left ear hearing loss is related to service. The Veteran's service treatment records do not document complaints of or treatment for left ear hearing loss. His August 1970 separation examination revealed puretone thresholds of 15, 15, 10, 25, 15, and 25 at 500, 1000, 2000, 3000, 4000, and 6000 Hertz. The report noted high frequency left ear hearing loss that was not currently disabling. Thereafter, the Veteran denied any hearing loss or ear trouble in a May 1971 report of medical history. Notwithstanding the report on the 1970 examination, audiogram findings meeting the definition of a disability under 38 C.F.R. § 3.385 were not shown during service. The first medical evidence documenting a left ear hearing loss disability is a May 2009 VA treatment record, which shows the Veteran had sensorineural hearing loss in the left ear. As a hearing loss disability was not shown in service or for many years thereafter, competent evidence linking his current left ear hearing loss with service is required to establish service connection. However, the most probative evidence is against finding a link between service and the Veteran's left ear hearing loss. In this regard, the Veteran underwent a VA examination in November 2019, during which the examiner indicated the Veteran had a diagnosis of sensorineural hearing loss in the left ear. The examiner acknowledged the history of in-service noise exposure; however, she opined that the Veteran's current left ear hearing loss was less likely than not caused by service. In April 2021, a VA examiner opined that the Veteran's left ear hearing loss was less likely than not incurred in or caused by service. In support of his opinion, the examiner cited medical literature which found that there is insufficient evidence to determine whether permanent noise-induced hearing loss can develop later in life, long after the cessation of noise exposure and that based on available data, it is unlikely that such delayed effects occur. The examiner explained that the Veteran's hearing was normal at enlistment and separation, and that hearing loss was not reported or found until 30 years after service. As such, the examiner concluded that due to the gradual onset of mild/moderate hearing loss in the high frequencies, the Veteran's hearing loss is consistent with changes due to aging or other factors outside of military service. There is no medical opinion to the contrary. While the Veteran believes his current left ear hearing loss disability arose in service or is related to service, as a lay person, he has not shown he has the specialized training sufficient to determine the degree of hearing loss or the etiology of such. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). In this regard, such matters require medical testing and expertise to determine. Consequently, the Veteran's opinion as to the onset and etiology of his hearing loss disability is not competent medical evidence. Id. The Board finds the in-service audiology examinations and VA examiners' opinions significantly more probative than the Veteran's lay assertions. In sum, the Board concludes that the most probative evidence of record is against finding that the Veteran's current left ear hearing loss disability was incurred in or caused by service, or manifested to a compensable degree within one year of discharge. Accordingly, service connection for left ear hearing loss is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the competing evidence is not in approximate balance, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.