Citation Nr: 1751462	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  14-24 553A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Crohe, Counsel





INTRODUCTION

The Veteran had active duty service from April 1957 to March 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

Also, in July and December 2015, the Board remanded the bilateral hearing loss and tinnitus claims for further development. The case has been returned to the Board at this time for further appellate review.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  A hearing loss disability was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran's current hearing loss is not related to service.

2.  Tinnitus was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran's current hearing loss is not related to service.

CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2.  The criteria for establishing service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II.  Legal Criteria

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303 (d).

Generally, in order to prove service connection, there must be 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.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

For the purposes of applying the law 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, 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.  38 C.F.R. § 3.385. "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993).

The Board notes that, prior to January 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since December 31, 1970, those standards have been set by the International Standards Organization-American National Standards Institute (ISO-ANSI).  In order to facilitate data comparison in this decision, for service department audiometric test results through December 31, 1970, the ASA standards have been converted to ISO-ANSI standards. 

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 standards by adding between 5 and 15 decibels to the recorded data as follows: ad 15, 10, 10, 10, and 5 decibels at 500, 1000, 2000, 3000, and 4000 Hz, respectively.  

Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309.
The United States Court of Appeals for Veterans Claims has held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309 (a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease of the nervous system.'" Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).  The Court also indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303 (b). Id.  at 272.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §  3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

III.  Analysis

The Veteran had active duty service in the United States Navy from April 1957 to March 1961.  The Veteran seeks to establish entitlement to service connection for bilateral hearing loss and tinnitus.  The Veteran reports close exposure to jet aircraft noise as an aircraft technician in service and acoustic trauma has been conceded.  

The Veteran contends that while on active duty, he was hit by a severe jet blast primarily to the left side of his body.  He explained that he and another service man were adjusting the compass on a jet aircraft with a J-57 jet engine.  He stated that in order to get the plane in the exact position to correctly calibrate the compass, the operator needed to jockey from one engine to the other.  While he was working near the engine, another serviceman accidentally accelerated the left throttle instead of the right and he experienced the jet blast.

At the outset, the Board notes the record reflects the Veteran has current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 and tinnitus, as shown on the March 2011 and November 2015 VA examinations.  Accordingly, the first criterion for establishing service connection, a current disability, has been met.  The question becomes whether the disability is related to service.

Service treatment records (STRs), included a March 1957 enlistment report of medical history, in which the Veteran denied currently having or ever having ear, nose, or throat trouble, as well as running ears.  On March 1957 entrance examination and a March 1961 release from active duty report of medical examination, clinical evaluations of the ears were normal and whispered voice hearing tests were 15/15.  STRs were silent as to any complaints or treatment for hearing loss or tinnitus during the Veteran's active duty service.  

STRs associated with the Veteran's U.S. Naval Reserves, includes an April 1964 report of medical history, in which the Veteran specifically denied currently having or ever having ear, nose, or throat trouble as well as running ears.  On accompanying report of medical history, a clinical evaluation of the ears was normal and whispered voice hearing test was 15/15.  On September 1965 report of medical history, the Veteran denied currently having or ever having ear, nose, or throat trouble; running ears; or hearing loss.  On September 1965 annual report of medical examination, a clinical evaluation of the ears was normal.  Whispered voice testing was 15/15.  When converted to ISO-ANSI standards, the examination showed pure tone thresholds of:







HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
20
10
LEFT
15
5
10
25
15

The Veteran specifically denied a history of tinnitus, syncope, or vertigo.  

The Veteran was afforded a VA audiology examination in March 2011, in which the examiner noted that the Veteran's enlistment and separation physicals for his period of active service from April 1957 to March 1961 did not include hearing thresholds tests, but that an annual physical from the Navy Reserved in September 1965 documented normal bilateral hearing through 6000Hz.  The examiner noted that the Veteran's normal hearing four years after his Navy separation strongly suggested that his hearing was not damaged while on active duty.  In so opining, the examiner cited research studies indicating that hazardous noise exposure had an immediate effect on hearing, which was usually temporary at first.  Therefore, based on the available evidence the examiner opined that the Veteran's current hearing loss and tinnitus were less likely as not caused by or the result of noise exposure during his active duty service in the Navy.

A review of the VA Medical Center treatment records show that the Veteran was seen for audiometric in October 2011, which confirmed a bilateral high frequency sensorineural hearing loss.  At the time, the Veteran reported noise exposure from jet engines as an aircraft electrician with hearing protection worn some of the time.  He also said that occupationally, he worked as an industrial engineer for 40 plus years with hearing protection being worn.  He indicated that he was not around of lot of loud noises.

In October 2013, L.H., a private advanced registered nurse practitioner, noted a history of the Veteran working around jet aircraft daily on the flight lines without any ear protection and one time received a strong jet blast to the left side of his body.  She reported that the Veteran's hearing was worsening and he had continuous tinnitus in both ears.  She added that in her opinion, the Veteran's problems would not improve, but rather deteriorate with time and the problems appeared to have been caused by accident and/or injury.

The Veteran's representative has argued that converting the September 1965 audiometric results from ASA to ISO units would demonstrate hearing acuity at the upper limits of normal for both ears.  See June 2015 Informal Hearing Presentation; see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). 

In July 2015, the Board remanded the Veteran's claims for an addendum opinion so that the VA examiner could convert the September 1965 audiometric examination from ASA to ISO units.  

In November 2015, the examiner noted in her report that the September 1965 hearing test results were not clearly documented as being obtained utilizing ASA or ISO measures.  Therefore, they were converted from ASA to ISO units in order to provide the most beneficial readings for the Veteran's claim and were still found to be within normal limits through 6000 Hz.  The examiner, after audiological examination of the Veteran, then opined that the Veteran's bilateral hearing loss and tinnitus were not as least as likely as not caused by or related to service.  The examiner indicated that "[i]t was noted that Navy Reserve physical documented normal, bilateral hearing on [September 25, 1965], four years after [the Veteran's] active duty discharge.  It was noted that his asymmetric hearing loss was first documented at a VA exam dated [October 4, 2011], forty years after his military discharge.  At the initial VA audiology exam in 2011 and a [follow-up] ENT exam, [the Veteran] reported a gradual decline in his hearing of unknown etiology.  He reported noise exposure from the military, his civilian occupation and hunting.  At today's app[pointmen]t, he reported that the previously documented incident of noise exposure from a jet engine blast and also 30+ years of occupational noise exposure working as an industrial electrician at Fernald Uranium Processing Plant . . . and at Formica."  

The examiner added that when the Veteran's lay statements were considered in regards to his current asymmetrical hearing loss, the explanation for his hearing loss were compelling.  She added, however, unprotected noise exposure from a jet engine blast at such a close range would be painful with an immediate impact on hearing.  She would also expect it to impact both ears regardless of which way his head was facing.  At the time of the appointment, the Veteran did not recall any symptoms of ear pain or hearing loss following the reported incident.  He instead reported a gradual decline in hearing over the past 10-20 years, which was not consistent with a single traumatic noise event 45 years ago.  The examiner opined that when the evidence of normal bilateral hearing in 1965 was weighed against the Veteran's provided noise history, the current bilateral hearing loss was less likely as not caused by or the result of an event in service.

Regarding the Veteran's tinnitus, the examiner noted that the Veteran's military records were silent for reports of tinnitus.  The examiner reported that the first evidence of tinnitus was in 2011, 40 years after the Veteran's Navy discharge.  Based on the objective evidence of normal hearing four years after discharge (the 1965 audiogram), there was no evidence on which to conclude that the Veteran's current hearing loss was caused by or the result of the Veteran's military service, including noise exposure.  Because there was no objective evidence of noise injury, there was also no basis on which to conclude that the claimed tinnitus was associated with such injuries.  Therefore, she opined that the current tinnitus was less likely as not caused by or the result of military noise exposure.

In December 2015, the Board remanded the claims again to obtain another opinion as it was unclear whether the examiner had converted the September 1965 audiometric results from ASA to ISO units.  Additionally, there was some evidence of hearing loss under Hensley at 3000Hz in the Veteran's left ear in 1965 according to the conversion results reported by the Veteran's representative, the examiner's statements of "normal hearing loss" in 1965 appeared incorrect, and the examiner did not address the possibility of whether the 1965 audiometric results demonstrated a threshold shift.  Also, the examiner needed to address in-service noise exposure.  Furthermore, another opinion regarding the Veteran's tinnitus was necessary.  

In a March 2016 opinion, the examiner reported the September 1965 audiometric ASA/ISO conversions as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
14
10
8.5
18.5
11
LEFT
14
5
8.5
23.5
16

The examiner indicated that after the ISO conversion, the Veteran's bilateral hearing thresholds were still within normal range from 500-6000Hz.  The examiner explained that for VA disability purposes and recognized standards within the audiology community as a whole, normal hearing is any threshold that falls between 0-25 dB.  Therefore, the 1965 audiogram shows that four plus years after he discharged from the Navy, the Veteran's hearing was within normal limits, regardless of whether or not the thresholds were interpreted in ASA or ISO units.  It was also documented on the September 1965 Reserve physical under section 75 that the Veteran denied tinnitus.  The examiner considered that noise exposure in the Navy was conceded, however, she reported that the presence of noise exposure did not always produce hearing loss.  The examiner reported that there were multiple causes for sensorineural type hearing loss and in most cases an exact etiology could not be determined.  She added that, "we do know that auditory damage from acoustic trauma occurs instantly, which is why normal hearing results on a physical obtained four plus years after the Veteran's Navy discharge cannot be disregarded even if there is a history of military noise exposure.  It can also not be disregarded that on 9/25/65, four plus years after discharge, he denied symptoms of tinnitus."  

The VA examiner concluded that based on the available evidence "it is my opinion that the current hearing loss and tinnitus are less likely as not caused by or the result of military noise exposure."  The examiner added that "[t]he Institute of Medicine has clearly stated that there is no way to predict if noise exposure occurs, how much if any, hearing loss would be sustained.  The presence of noise exposure does not always produce hearing loss.  There are multiple causes for sensorineural type hearing loss and in most cases an exact etiology cannot be determined.  Sensorineural hearing loss can be caused by aging, vascular disease, viral disease, autoimmune disease, noise exposure, medications, genetics or any combination of these or other factors.  We do know that auditory damage from acoustic trauma occurs instantly, which is why normal results on a hearing test obtained four years after military discharge cannot be disregarded even if there was a history of military noise exposure."  The examiner noted that there was no way to determine whether or not the 1965 audiogram represents evidence of threshold shifts because there were no prior audiograms with which to compare it to and as such, the audiogram in and of itself does not represent evidence of hearing loss.  In in support of her conclusion, the examiner noted that at the initial VA audiology examination in 2011 and follow up, the Veteran reported hearing loss of gradual onset and unknown etiology.  The Veteran reported noise exposure from the military, his civilian occupation and hunting.  At his November 2015 examination, the Veteran reported 30 plus years of occupational noise exposure.  The examiner opined that unprotected noise exposure from a jet engine blast at such a close range, however, would be painful with an immediate impact on hearing.  The examiner explained that she would expect it to impact both ears regardless of which way the Veteran's head was facing.  The examiner additionally noted that at his November 2015 VA examination, the Veteran did not recall any symptoms of ear pain or hearing loss following the reported incident and instead reported a gradual decline in hearing over the past 10-20 years, which the examiner indicated is not consistent with a single traumatic noise event 50+ years ago.  In addressing the positive nexus opinion provided by the Veteran, the examiner opined that the private practitioner rendering the opinion was a nurse practitioner who is not an expert in the science of hearing.  The examiner noted that the private nurse practitioner rendered an opinion on behalf of the Veteran on the etiology of his hearing loss and tinnitus without access to his service medical records. 

Subsequently, the Board sought a medical expert opinion.  In response, in August 2017, when asked whether the Veteran's bilateral hearing loss was related to service, Drs. R.T., an Otolaryngologist, and M.K., a physician, opined that the Veteran's bilateral hearing loss was less likely than not (50 percent or less probability) caused by or otherwise the result of military service, including the Veteran's conceded noise exposure.  The examiners explained that the hearing loss due to noise exposure would be expected to occur immediately after exposure and normal hearing test results four years after discharge from the military service were not consistent with hearing loss due to noise exposure in service.  Drs. R.T. and M.K. also opined that the Veteran's tinnitus was less likely than not (50 percent or less probability) caused by or otherwise the result of military service, including the Veteran's conceded noise exposure.  The experts explained that tinnitus would be expected to occur immediately after noise exposure; however, the Veteran had a normal hearing test four years after discharge from service and did not complain of tinnitus at the time.  The examiners found that the hearing test in 1965 was considered valid despite it not being a Maryland CNC hearing test for VA purposes.  Regarding any threshold shift, the examiners reported that there was no hearing test from before the military service to determine with certainty whether any threshold shift occurred.  The examiners acknowledged that the audiogram in 1965 showed a slight increase of 23.5 decibels at the 3000 Hz frequency; however, due to the fact that these changes occurred only at one frequency, they considered the results of the 1965 audiogram as normal.  After examining the available documents of record, it appears that the Veteran started to complain of hearing loss and tinnitus 50 years after discharge from the military, which suggested that his symptoms did not start in service.  

The examiner found that although the October 2013 letter from L.H. suggested that the Veteran's hearing loss and tinnitus were related to the Veteran's noise exposure, however, the results of the audiogram in 1965 did not support this conclusion.  The examiners added that most cases of sensorineural hearing gloss did not have a specific etiology; therefore, we could not give the causes of the Veteran's hearing loss diagnosis without pure speculation.  The speculated that the Veteran's hearing loss could be due to age related changes or due to vascular insufficiency.  

On review of the record, the Board has considered the October 2013 opinion from L.H suggesting that the Veteran's bilateral hearing loss and tinnitus appeared to have been caused by accident and/or injury; however, no rationale was provided regarding a relationship between the Veteran's hearing loss and tinnitus and service, thus negating any probative value.  Moreover, medical opinions that are speculative, general or inconclusive in nature cannot support a claim.  See 38 C.F.R. § 3.102 (2017); see also Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative).

Overall, the Board finds that the March 2011, November 2015, and December 2016 VA medical opinions combined with the August 2017 VA medical expert opinion are probative, as they were predicated upon a thorough, accurate review of the record and are supported by a sufficient rationale.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion).

The Board acknowledges Hensley v. Brown, 5 Vet. App. 155, 159 (1993), which states that a medical nexus between service and a hearing loss diagnosed after service is not necessarily precluded by the lack of audiometric data reflecting hearing loss for VA purposes on separation from service.  See id. (holding that the lack of audiometric data reflecting a hearing loss at separation from service does not necessarily preclude the award of service connection for hearing loss, as the Veteran may nevertheless establish eligibility for service connection by submitting evidence that the current hearing loss is causally related to service).  However, in the instant case, the Veteran has not submitted any probative evidence linking his own hearing loss to service, aside from his own assertions of experiencing in-service acoustic trauma, a fact conceded by VA and considered by the VA examiners and medical experts.  

Additionally, the Board acknowledges that, under Hensley thresholds higher than 20 dB indicate some level of hearing loss.  Here, in the Veteran's case, a question has been raised as to whether or not a September 1965 audiogram, more than four years after the Veteran was released from active duty, is indicative of hearing loss based on findings after ASA/ISO conversion of 23.5-25 decibels at 3000 Hz in the left ear.  In a March 2016 opinion, the examiner stated that for both VA disability purposes and recognized standards within the audiology community as a whole, normal hearing is any threshold that falls between 0-25 dB, therefore, the 1965 audiogram shows that four plus years after he discharged from the Navy, the Veteran's hearing was within normal limits.  The examiner further explained that there was no way to determine whether or not the 1965 audiogram represented evidence of threshold shifts because there were no prior audiograms with which to compare it to and as such, the audiogram in and of itself did not represent evidence of hearing loss.  Moreover, in August 2017, Drs. R.T. and M.K. found that the hearing test in 1965 was considered valid despite it not being a Maryland CNC hearing test for VA purposes.  Regarding any threshold shift, the examiners reported that there was no hearing test from before the military service to determine with certainty whether any threshold shift occurred.  The examiners acknowledged that the audiogram in 1965 showed a slight increase of 23.5 decibels at the 3000 Hz frequency; however, they considered the results of the 1965 audiogram as normal.  

Moreover, in her November 2015 and March 2016 opinions, the VA examiner noted the Veteran did not recall any symptoms of ear pain or hearing loss following the reported noise exposure and instead reported a gradual decline in hearing over the past 10-20 years, which was not consistent with a single traumatic noise event 45 (plus) years ago.  The examiner explained that unprotected noise exposure from a jet engine blast at such a close range would be painful with an immediate impact on hearing.  In her March 2011 opinion, the VA examiner cited research studies indicating that hazardous noise exposure had an immediate effect on hearing, which was usually temporary at first.  In the November 2015 and March 2016 opinions, the examiner explained that she would expect it to impact both ears regardless of which way the Veteran's head was facing.  Additionally, in August 2017, Drs. R.T. and M.K. explained that the hearing loss due to noise exposure would be expected to occur immediately after exposure and normal hearing test results four years after discharge from the military service were not consistent with hearing loss due to noise exposure in service.  As such, the Board finds that the medical evidence of record shows that the threshold of 23.5-25 dB at 3000 Hz is not indicative of a hearing loss due to noise exposure in service.  The examiners addressed this threshold level and provided rationale for their opinions that it was less likely as not that any current hearing impairment was due to service.  As such, these opinions are competent, probative evidence against the claim. Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); Ardison v. Brown, 6 Vet.App. 405, 407 (1994); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).

A hearing loss disability pursuant to 38 C.F.R. § 3.385 and tinnitus was not shown until the March 2011 VA audiological evaluation, approximately 50 years after separation from his active duty service.  The Court has indicated the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran had failed to account for lengthy time period between service and initial symptoms of disability.)  Thus, the lack of any evidence of bilateral hearing loss and tinnitus complaints, symptoms, or findings for over five decades between the Veteran's military service and the earliest evidence of bilateral hearing loss and tinnitus is itself evidence which tends to show that bilateral hearing loss and tinnitus did not have its onset in service or for many years thereafter.

Furthermore, as the evidence does not show that the Veteran had bilateral hearing loss manifest to a degree of 10 percent or more within one year of discharge, the Board finds that service connection on a presumptive basis is not warranted. 

Similarly, the Board also finds that the evidence does not establish a continuity of symptomatology and therefore a nexus under Walker, as sensorineural hearing loss and tinnitus is a chronic disease as per 38 C.F.R. § 3.309.  On April 1964 report of medical history, the Veteran specifically denied currently having or ever having ear, nose, or throat trouble as well as running ears.  Additionally, on September 1965 report of medical history, the Veteran denied currently having or ever having ear, nose, or throat trouble; running ears; or hearing loss and on September 1965 annual report of medical examination, the Veteran specifically denied having tinnitus.  The contemporaneous evidence of record within a few years of the Veteran's release from active duty weighs against a finding of a continuity of symptomatology.  

The Veteran himself believes that his left hearing loss and tinnitus disabilities are related to active service.  In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  Here, however, due to the passage of time and the Veteran's post-service exposure to occupational noise while working as an industrial electrician for 30 plus years, the question of causation extends beyond an immediately observable cause-and-effect relationship.  As such, the Veteran is not competent to address etiology in the present case.  

The overall evidence of record weighs against a finding of bilateral hearing loss and tinnitus being associated with the Veteran's active duty.  Without an equipoise in the evidence showing an association between bilateral hearing loss and tinnitus and the Veteran's active duty, service connection for bilateral hearing loss and tinnitus is not warranted.

Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss and tinnitus.  As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for bilateral hearing loss is denied.  See 38 U.S.C.A § 5107.


ORDER

Service connection for bilateral hearing loss is denied. 

Service connection for tinnitus is denied.  



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs