Citation Nr: 18160378
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 14-43 861
DATE:	December 27, 2018
ORDER
The claim of entitlement to service connection for bilateral hearing loss is denied.
FINDINGS OF FACT
1. The Veteran has a current disability of bilateral hearing loss. 
2. The Veteran’s bilateral hearing loss did not manifest during active service, within one year of his separation from active service, and is not otherwise related to his active service. 
CONCLUSION OF LAW
The criteria for establishing entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had honorable active duty service with the United States Army from February 1968 to February 1971.
This matter is before the Board of Veteran’s Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, ID.
Entitlement to service connection for bilateral hearing loss.
The Veteran contends that he is entitled to a service connection for bilateral hearing loss.
Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).
Certain chronic diseases, including sensorineural hearing loss may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. To show chronicity there is a requirement of a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic”. 38 C.F.R. § 3.303(b). In these types of cases the disease is presumed under the law to have had its onset during service even though there is no evidence of that disease during service. 38 C.F.R. § 3.307(a) (2018). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307(d), 3.309(a).
Pursuant to 38 C.F.R. § 3.309(a) (2018) if a disease is not shown to be chronic during service or the one-year presumptive period, then service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b) (2018). Continuity of symptomatology may be established by demonstrating: (1) that a condition is shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.
However, to use continuity of symptoms to establish a direct service connection is limited only to those disease listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities.
Generally, when there is a balance of positive and negative evidence regarding a material issue the Veteran is to be given the benefit of the doubt. § 38 C.F.R. § 5107. However, to deny a claim on its merits there must be a preponderance of evidence must be against the claim. See Gilbert v. Derwinski, 1 Vet App. 49 (1990).
For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz 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 (2018).
38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993).
Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159.
The Veteran had an in-service audiological evaluation during service in November 1967, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements that are most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975.
In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels ot the recorded data as follows:
Hertz	250	500	1000	2000	3000	4000	6000	8000
Add	15	15	10	10	10	5	10	10


On the Veteran’s audiological induction examination in November 1967, pure tone thresholds, in dB, were recorded as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	10	10	10	10	10
LEFT	10	10	10	10	10
In converting the November 1967 audiological examination results the INSO-ANSI results are as follows: 
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	25	20	20	20	15
LEFT	25	20	20	20	15
Upon separation in February 1971, the Veteran was given another audiological examination. However, the Veteran also denied hearing loss on his report of medical history questionnaire.
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	0	5	0	/	0
LEFT	0	0	0	/	5


A November 2013 VA audiological evaluation noted pure tone thresholds, in decibels as follows:
			HERTZ		
	500	1000	2000	3000	4000
RIGHT	35	20	20	55	65
LEFT	25	20	15	25	55
That the VA examiner noted that the Veteran’s Maryland CNC wordlist was a 96 percent for his right ear and 100 percent for his left ear. The VA examiner also noted review of the claims file and additional documents. The VA examiner opined that the Veteran’s bilateral hearing loss was at least as likely as not caused by or a result of an event in military service. She noted that upon discharge at the Veteran’s separation examination the Veteran had normal hearing sensitivity in both ears.
In reviewing the record, the Veteran upon his separation examination, noted that he had no hearing loss. In a May 1970 physical evaluation during service a hearing test was performed showing an 18 out of 20 in both ears, which met the requirements set forth by the Army at that time. The first time the Veteran sought treatment for hearing loss was in September 2012, decades after separating from service.
The Veteran’s bilateral hearing loss was confirmed during his November 2013 VA audiological examination. However, the Maryland CNC Test were not less than 94 percent for either ear. The current disability element is met.
The Veteran’s lay statements and DD-214 confirm his military occupational specialty (MOS) of being a helicopter mechanic. The Board finds that it is likely the Veteran was exposed to the claimed acoustic trauma in-service. Additionally, noise exposure was conceded by VA in November 2013. See November 2013 Request for Physical Examination. However, even with the noise exposure there is no evidence of record indicating that the disability manifested to the requisite level under 38 C.F.R. § 3.385 at any point in-service or within one-year after, and no medical or lay evidence of chronicity, continuity of symptomatology, or of any hearing loss until October 2012 when the Veteran mentions in a VA audiological examination that he has had hearing loss since his military service.
Regarding the medical nexus element of service connection, there is no positive medical nexus evidence or opinion. The VA opinion of November 2013 states that the Veteran’s bilateral hearing loss was less likely than not related to his active duty service because his hearing was bilaterally normal at the time of separation. There are no other medical opinions and no other competent medical evidence that addresses the connection between the bilateral hearing loss of the Veteran and his active duty service. This opinion appears thorough and to have considered the Veteran’s records. The Board affords the opinion of the November 2013 VA examination with significant weight, and as there is no other medical opinion it is the determining factor in this element.
The lay statements of the Veteran indicated that he was in the National Guard in field artillery, and thereafter worked at a feed company for 10 years, a phone company for 10 years, and then finally became a rancher for 20 years. The Veteran indicated in his initial claim December 2012 that his hobbies were also hunting and fishing. That in an October 2012 audiological evaluation by the VA, the Veteran indicated that there was a “history of noise exposure both occupationally and recreationally (guns)”. All of these statements indicate the possibility of incurrent events which could attribute to the Veteran’s current bilateral hearing loss.
The Veteran also indicated in the record that his hearing loss has been since his military service, that he was exposed to both helicopter and weapons noise, and that he feels he is qualified to determine that his hearing started to deteriorate while in-service. However, the Board finds that the record does not reflect that the Veteran possesses the required expertise to provide a medical diagnosis or etiology (origin) of the claimed condition. 38 C.F.R. § 3.159(a)(2) (2018). The Veteran’s lay statements are intended to reflect a diagnosis or etiology and as such are given limited weight in comparison to the VA examination findings.
When weighing the evidence of record, the Board must consider all medical and lay evidence, and determine its competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 U.S.C. §§ 5107(b), 7104(a) (2012); 38 C.F.R. § 3.303(a) (2018).
In considering all the evidence of record, the lay statements of the Veteran, the negative medical nexus opinion, the Veteran’s service treatment records, and the whole of the case file, the Board finds that the preponderance of the evidence weighs against the claim. In finding as such, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303; Gilbert, 1 Vet. App. 49.
The Veteran has not met the criteria for service connection for bilateral hearing loss.
 
B. MULLINS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C.A. Teich, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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