190308-5231

• Court: Board of Veterans' Appeals
• Decided: June 26, 2019
• Docket: 190308-5231
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 06/26/19 Archive Date: 06/26/19

DOCKET NO. 190308-5231 DATE: June 26, 2019

ORDER

Entitlement to service connection for right ear hearing loss is denied.

FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran's right ear hearing loss began during active service or is otherwise related to an in-service injury or disease.

CONCLUSION OF LAW

The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

In October 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)).

The Veteran served on active duty from July 1948 to May 1952, from June 1955 to September 1958, and from April 1959 to April 1963. The Veteran selected the Supplemental Claim lane when he opted in to the Appeals Modernization Act (AMA). In a February 2019 AMA rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim. In March 2019 the Veteran appealed the rating decision and requested direct review of the evidence considered by the AOJ.

In the February 2019 AMA decision, the AOJ found that new and relevant evidence was submitted to warrant readjudicating the claim for service connection for right ear hearing loss. The Board is bound by this favorable finding. 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)).

1. Service connection for Right Ear Hearing Loss

The Veteran contends that his right ear hearing loss is related to his active duty service.

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).

The AOJ found that the Veteran has a diagnosis of right ear hearing loss.

Therefore, the question for the Board is whether the Veteran’s current disability began during service or is at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that the preponderance of the evidence is against finding that the Veteran's right ear hearing loss began during active service, or is otherwise related to an in-service injury, event, or disease.

The Veteran's service treatment records are silent for any complaint, diagnosis, or treatment related to right ear hearing loss. The DD Form 214 for each of his periods of service show that the Veteran served as an Administrative Clerk and an Administrative Specialist. The Veteran reported no trouble with his ears in his March 1963 separation medical history, likewise, in medical histories given in April 1975 and May 1976, while the Veteran was in the Reserves, he reported no history of hearing loss.

A December 2017 VA examiner gave the Veteran a diagnosis of right ear sensorineural hearing loss but opined that the Veteran's right ear hearing loss was less likely than not related to his service. The examiner explained that the Veteran served for a combined 11 years during which his job was Administrative, which carried a low probability of noise exposure. The examiner opined that with the normal progression for age and the time since military service, being many years prior, the Veteran’s hearing loss was less likely than not caused by or the result of an event in military service.

In her December 2017 opinion, the examiner incorrectly stated that the only hearing information available was a whisper exam on his separation in 1952 from the Army. However, in an addendum opinion in June 2018, the examiner fully reviewed the Veteran’s service treatment records from each of his active duty service periods and found that the Veteran's hearing remained normal throughout active duty and opined that the Veteran's right ear hearing loss was therefore less likely than not incurred in or caused by exposure to hazardous noise in service.

While the Veteran believes his right ear hearing loss is related to his active duty service, he has not been shown to be competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of audiological testing and interpretation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion of the VA examiner.

Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for right ear hearing loss, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied.

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD E. Mine, 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.