Citation Nr: 22014079 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-63 575 DATE: March 11, 2022 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The evidence is persuasively against a finding that the Veteran's bilateral hearing loss is related to his active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1974 to June 1976. In his December 2016 Appeal to the Board of Veterans' Appeals, Form 9, the Veteran requested a hearing before a Veterans' Law Judge. However, in June 2021 he submitted a statement indicating that he wished to withdraw his request for a hearing. As such, the Board deems his request for a hearing withdrawn. 38 C.F.R. § 20.704(e). Service Connection for Bilateral Hearing Loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). Certain chronic diseases, including hearing loss, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. For the purposes of applying the laws administered by VA, 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. Service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The evidence in this matter shows that the Veteran sought service connection for hearing loss in July 2009. Service treatment records show the Veteran had normal hearing during his January 1974, May 1975, and June 1976 service examinations. Nevertheless, exposure to acoustic trauma has been conceded. See August 2021 Board Decision. An April 2010 VA examination found that the Veteran did not meet the criteria for hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. In a December 2009 Statement in Support of Claim, the Veteran reported that he suffered acoustic trauma during service and that his hearing loss had persisted since service. VA medical records in evidence show that either the Veteran denied hearing loss, or no hearing loss was found, on numerous occasions. See August 2008, November 2008, December 2011, January 2012, May 2016, May 2018, December 2018, February 2019, March 2019, April 2019, October 2020 VA medical records. However, there are VA medical records which indicate that the Veteran did have hearing loss. In September 2009, the Veteran stated he could not hear people talk and wanted a hearing test. An August 2010 VA medical record reported the Veteran had a decrease in hearing bilaterally. An audiology report noted that pure tone thresholds were not able to be obtained and no hearing aids were issued at that time. In May 2011, the Veteran reported a decrease in his right ear hearing for the past 3 months. In August 2016, the Veteran reported gradual hearing loss which began many years ago. He was found to have sloping mild to severe hearing loss and was issued hearing aids. A September 2021 VA examination found that the Veteran did meet the criteria for hearing loss. A January 2022 VA examination opinion found that there was no link between the Veteran's hearing loss and his active duty service. Specifically, the examiner found that there was no evidence that the Veteran's conceded noise exposure in service caused a permanent noise injury affecting his hearing sensitivity based on the lack of any significant pure tone threshold shifts during audiometric testing in service. The examiner stated that the audiogram is the objective standard for noise injury. The Veteran's normal hearing at separation, combined with the lack of any significant threshold shifts, meant there was no evidence that military noise exposure caused a permanent noise injury. After review of the record, the Board finds that the evidence does not persuasively show that the Veteran's hearing loss was related to his active duty service. The Board has specifically considered the Veteran's September 2009 statement that he had hearing loss since his active duty service. However, the Board does not find that the Veteran's 2009 statement is supported by the record. Throughout the Veteran's VA treatment and specifically his hearing loss treatment he did not on any occasion relate his hearing loss to his active duty service or state that his hearing loss had persisted since his active duty service. Indeed, even when first discussing his reported hearing loss in 2009 or when he was issued hearing aids in 2016, the Veteran did not report that he had persistent hearing loss since his active duty service or indicate he thought his hearing loss was due to his conceded noise exposure in-service. Thus, the Board does not afford the Veteran's September 2009 statement any probative weight. Insofar as the August 2021 Board Decision found the Veteran's statements credible, the Board notes that the 2021 Board decision limited its finding to the purpose of the Remand analysis. As such, the Board is not bound by that finding. Furthermore, the Veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The record shows that the Veteran did not voice complaints of hearing loss until 2009, which was over 30 years after his active duty and his conceded noise exposure in service. Furthermore, the earliest that hearing loss was diagnosed sufficient for treatment/hearing aids was in 2016, 40 years after the Veteran's active duty service. Throughout the course of the Veteran's VA treatment and claim, there is no probative evidence which links the Veteran's hearing loss to his active duty service. Though the Veteran stated after he filed his claim that he had hearing loss since his active duty service, this statement is not supported by the objective evidence of the record. There is no other evidence which does indicate that the Veteran had hearing loss since his active duty or that his current hearing loss is linked to his active duty in any way. The 2022 VA examiner did not find such a link. The Board notes that the Veteran has not indicated that the VA examiner's opinion is inadequate in any manner and has also not provided or identified any evidence which contradicts the VA examiner's opinion. Thus, the Board finds that the evidence persuasively weighs against a finding that the Veteran's hearing loss was related to his active duty service. As such, service connection for bilateral hearing loss is not warranted. Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.