Citation Nr: 23005167 Decision Date: 01/26/23 Archive Date: 01/26/23 DOCKET NO. 14-26 825 DATE: January 26, 2023 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have bilateral hearing loss as defined by VA regulation. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1980 to February 1984. This matter is before the Board of Veterans' Appeals (Board) from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran, accompanied by his wife, testified at a Board hearing before the undersigned Veterans Law Judge. This matter was last before the Board in April 2020 when it was reopened and remanded for further development. The April 2020 Board remand also remanded the service connection claims for chronic low back disorder, hypertension and an acquired psychiatric disorder, to include anxiety to the RO for further development, including obtaining a VA examinations and medical nexus opinions. In a January 2022 rating decision, service connection was granted for lumbar spine degenerative disc disease, hypertension, and anxiety, with an effective date of March 21, 2011 for each claim. As this was a full grant of the benefit sought on appeal for these claims, there is no further controversy with respect to such claims and they are no longer before the Board for appellate consideration. The Veteran is not represented in this case. In November 2022, the Board notified the Veteran that the representative he appointed is not accredited and that his claim would proceed without representation unless he replied within 30 days appointing a new representative. The Veteran did not respond; therefore, the claim will proceed without representation. Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Certain chronic diseases (to include sensorineural hearing loss as organic diseases of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (one year for organic diseases of the nervous system). 38 U.S.C. § 1137; 38 C.F.R. §§ 3.307, 3.309. Nexus of a chronic disease to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). The Board notes that the RO has indicated that a portion of the Veteran's service treatment records are not available. When service treatment records have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide an explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). The Veteran contends that service connection for bilateral hearing loss is warranted because of noise exposure in service. Specifically, he was exposed to noise from generators and trucks while working with nuclear weapons for 4 years in the military. (See May 2011 VA audio examination report). He stated he worked with generators at power stations to power-up nuclear weapons. He stated it was sometime after service that he noticed he was having trouble hearing. (See July 2017 Hearing Transcript). The Veteran's DD-214 shows he was a "Pershing" missile crew member. Service treatment records show audiometric testing was conducted at the Veteran's enlistment medical examination in February 1980; at that time his hearing was within normal limits. Post-service, the Veteran underwent a VA general medical examination in July 1992. He presented with several complaints, none of which related to hearing loss, and neither was an evaluation conducted on his hearing. The record shows the Veteran's first post-service VA audio examination was in May 2011. At the May 2011 examination, his chief complaint was bilateral hearing loss. He reported exposure to generators and trucks while working with nuclear weapons in the military. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 15 15 15 LEFT 10 10 5 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. Puretone air and bone conduction thresholds indicated hearing was within normal limits bilaterally. The audiologist rendered a medical nexus opinion that the Board viewed as inadequate and remanded the claim to afford the Veteran an adequate VA hearing loss examination, which was conducted in December 2021. Audiological evaluation in December 2021 revealed the following pure tone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 25 20 LEFT 5 15 20 35 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. Bilateral sensorineural hearing loss was diagnosed. The examiner/audiologist opined that it is less likely than not that there is a hearing loss related to the Veteran's military noise exposure. The rationale for the opinion was that the Veteran's hearing was normal on service entrance in 1980. There is no record of an audiogram in 1984 when he separated from service. The Veteran reported a decrease in hearing during active duty. The May 2011 VA audio examination showed normal hearing, which was many years after service separation. The audiologist noted that noise exposure on active duty is conceded; however, the evidence is against a nexus. The Board finds that the audiologist's opinion is entitled to significant probative weight because she reviewed the claims file, conducted appropriate testing for hearing loss, and provided a rationale for the conclusion reached. The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. See 38 C.F.R. § 3.385. The evidence of record establishes that the Veteran does not have a current bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. The Board has considered the Veteran's statements that his hearing loss is the result of noise exposure in service. He is competent to provide evidence of that which he experiences, including his symptomatology and medical history. However, he is not competent to render a medical diagnosis of hearing loss absent specialized medical or audiological training. There is no indication in the record that he possesses any such background or training. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence does not support the conclusion that there is a current bilateral hearing loss disability per VA regulation. His lay assertions are afforded less probative weight than the VA-contract examination report and opinion. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. There is no indication from the record that the Veteran has a bilateral hearing loss disability for VA purposes. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Thus, service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.