Citation Nr: 22018375 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-21 793 DATE: March 29, 2022 ORDER Service connection for bilateral hearing loss (BHL) is denied. FINDING OF FACT The evidence is not in approximate balance but is persuasively weighted against finding that the Veteran's BHL is causally related to acoustic trauma during service. CONCLUSION OF LAW The criteria for service connection for BHL have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served from September 1972 to September 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision. In September 2021 the Veteran attended a virtual hearing before the undersigned Veterans Law Judge and a transcript of those proceedings are of record. Service connection for BHL Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For VA purposes, impaired hearing is considered disabling 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. Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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 (a)(3), 3.309(a). Sensorineural hearing loss qualifies as a chronic disease. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing is a qualifying chronic disease. 38 C.F.R. § 3.309 (a). As a result, service connection via the demonstration of continuity of symptomatology is applicable. To establish service connection, the Veteran is not obliged to show that hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish the causal link between his current disability and his in-service injury (such as acoustic trauma through exposure to loud noise). Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The Veteran contends generally that his BHL is causally related to acoustic trauma experienced during his active-duty service. The medical evidence reflects that the Veteran has BHL that is severe enough to qualify as a disability for VA compensation purposes. See September 2017 Pinehurst Surgical Records; February 2018 VA examination report. Audiometric testing performed in 1972 at enlistment showed normal hearing thresholds in both ears. Separation testing also showed normal hearing with an actual slight improvement in hearing thresholds from enlistment. See February 2018 VA examination report. During the February 2018 VA examination, the Veteran reported difficulty hearing the television and understanding people when they are talking. The February 2018 VA examiner opined that it less likely than not that the Veteran's BHL is causally related to his military service. The examiner discussed the results of the Veteran's audiometric readings at enlistment and separation from service noting the slight improvements in hearing thresholds. The examiner also noted that the Veteran reported working in a mill for thirty years following separation from service and was provided hearing protective devices. In his September 2021 hearing testimony, the Veteran estimated that his hearing loss began sometime in the 1990s. He communicated that his military occupational specialty (MOS) involved exposure to tanks, heavy equipment, and large munitions, but that he likely used hearing protective devices during service. The Veteran did not state with any degree of certainty whether he had or began noticing hearing problems during his active-duty service. After thoroughly reviewing the evidence, the Board has first determined that there is no medical or lay evidence to support a presumptive grant of service connection for BHL as a chronic disease because the Veteran's own testimony places the onset of this disability sometime in the 1990s at the earliest and his active-duty service ended in 1975. 38 C.F.R. § 3.309 (a). In this regard, the Board notes that the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service-connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also finds that the February 2018 VA medical opinion is probative medical evidence of record regarding a nexus between the Veteran's BHL and noise exposure during service. Particularly, this opinion noted that there is no objective evidence of any decrease in hearing thresholds after review of audiometric readings at enlistment and separation from service. Further, the examiner noted that the Veteran worked in a mill for thirty years following service which would involve prolonged exposure to heavy machinery, despite the use of hearing protective devices. Finally, the Veteran has not submitted competent medical evidence from similarly qualified audiology specialists which conflict with the negative nexus finding of the VA examiner of record. The Board has duly considered general contentions made by the Veteran's representative contending that noise exposure during service is the cause of his current BHL disability. However, while the Board is sympathetic to these contentions, neither the Veteran or his representative is competent (medically qualified) to provide a causal nexus opinion in this case, which involves a medically complex question (because there may be multiple possible causes of hearing loss, including genetics and aging, occupational noise exposure that are not observable factors). Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, under the facts of this case, the Board must give more probative weight to the qualified opinion of the VA examiner. Finally, as discussed, the Veteran through his testimony has not alleged that his hearing loss symptoms began during service but rather fifteen years following separation, at the earliest. This testimony, in addition to a long history of post-service occupational noise exposure, tends to belie a nexus between acoustic trauma during service and the Veteran's current BHL. Because the evidence is not in approximate balance but is persuasively weight against a finding of service connection, the benefit-of-the-doubt rule does not apply, and the claim for service connection for BHL must be denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.