Citation Nr: 1759910 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 12-12 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1965. The Veteran died in February 2013. The appellant is the Veteran's surviving spouse, and she has been substituted as the claimant in the case. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which denied service connection for bilateral hearing loss and bilateral tinnitus. In September 2010, the Veteran submitted his notice of disagreement, was issued a statement of the case in April 2012, and in May 2012 perfected his appeal to the Board. FINDINGS OF FACT 1. The Veteran's tinnitus was not caused by active service, did not have onset during active service, or manifest within one year of separation from active service. 2. The Veteran's bilateral hearing loss disability did not have onset during active service, was not caused by active service, and did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). 2. The criteria for service connection for bilateral hearing loss have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contended that he suffered from hearing loss and tinnitus since service as a result of noise exposure as an air policeman in service. He stated that his tinnitus was worse at that time, but has since progressed. He stated that it keeps him up at night and occasionally awakens him. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1110, 1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. A VA audiology examination report from August 2010 documents that the Veteran has a current bilateral hearing loss disability consistent with the regulatory definition in § 3.385. The Veteran's service treatment records, including his July 1961 and June 1965 medical history reports, are silent for any complaints or diagnosis of hearing loss or tinnitus during service. His May 1961 report of medical examination upon entrance into service show puretone thresholds of 15, 10, 10, NA, and 10 dB at frequencies of 500, 1000, 2000, 3000 and 4000 Hz respectively for his right ear, and puretone thresholds of 0,10,15, NA, and 10 dB respectively for his left ear. His June 1965 report of medical examination show puretone thresholds at frequencies of 500, 1000, 2000, 3000 and 4000 Hz of 0, 10, 10, 5, and 10dB respectively for his right ear, and 5, 10, 10, 10, and 10 dB respectively for his left ear. The Board notes that prior to January 1, 1967, auditory thresholds were recorded using American Standards Association (ASA) units. In light of this, where necessary to facilitate data comparisons 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 International Standards Organization-American National Standards Institute (ISO-ANSI) units by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 Applying this conversion to ISO-ANSI units results in the following puretone threshold readings for the May 1961 entrance examination audiological report: Puretone thresholds in the right ear at 500, 1000, 2000, 3000 and 4000 Hz, of 30, 20, 20, NA, and 15 dB respectively, and puretone thresholds in the left ear of 15, 20, NA, and 15dB. For the June 1965 audiological examination, conversion to ISO-ANSI units results in puretone thresholds in the right ear at 500, 1000, 2000, 3000 and 4000 Hz, of 15, 20, 20, 15, and 15 dB respectively, and puretone thresholds in the left ear of 20, 20, 20, 20, and 15 dB respectively. The Board finds that the Veteran's medical examination reports show that the Veteran did not suffer from a bilateral hearing loss during service as his audiological examinations show normal hearing, and there is no evidence within the reports of hearing loss or tinnitus. In December 2009, the Veteran underwent a private audiological examination wherein he reported constant tinnitus and hearing loss. The examination revealed moderate to severe downward sloping hearing loss; essentially just in the high moderate, and just barely severe in the highest frequency. The examiner opined that it was more likely than not that the Veteran's hearing loss and tinnitus were the result of noise exposure and acoustic trauma experienced during military service. An August 2010 VA examination report noted that the Veteran had a moderate to severe sensorineural bilateral hearing loss disability for VA purposes. Examination findings also noted the Veteran's report of recurrent tinnitus which he is competent to report. Charles v. Principi, 16 Vet. App. 370 (2002). The examiner noted that the Veteran had normal hearing upon enlistment and separation with no threshold shift as defined by the military in either ear. The examiner noted that the etiology of tinnitus could not be determined on the basis of the available information without resorting to speculation. She also opined that it was less than at least as likely than not that the Veteran has hearing loss or tinnitus related to military noise exposure, concluding that the Veteran's statements regarding tinnitus were inconsistent with the findings of essentially excellent, clinically normal hearing sensitivity at the time of discharge. She also referenced the fact that no hearing loss was found at the time of discharge. The examination report must be read as a whole. Although the examiner indicated that the etiology of the Veteran's tinnitus could not be determined without resorting to speculation, the etiology of his hearing loss need not be determined to adjudicate the claim. What must be determined is whether his tinnitus had onset during service, was caused by service - including exposure to loud noise, or manifested within one year of separation from service. In other words, if the evidence preponderates against a finding of such relationship to service, the exact etiology of his tinnitus is not material to the claim. Here, the examiner provided an opinion that his tinnitus and hearing loss were not due to service. This is sufficient and adequate as it answers the material question and is supported by a rationale. The Board finds that considering all of the relevant evidence of record, service connection for bilateral hearing loss and tinnitus is not warranted. While the Veteran maintained that he suffered from tinnitus since service, his service treatment records, including reports of medical examination and medical history are silent for any complaints or treatment for tinnitus. There are no medical treatment records providing evidence of treatment for hearing loss or tinnitus from the time the Veteran was discharged from service, and in fact, no evidence in the record indicating when the Veteran's hearing loss and tinnitus began. The first noted evidence of a complaint or treatment for tinnitus or hearing loss was during his December 2009 private examination, more than 40 years after his separation from service. The private audiologist opined that the Veteran's hearing loss and tinnitus are more likely than not due to acoustic noise exposure due to service, but the Board finds this opinion is outweighed by the evidence of record to the contrary, including the August VA examination report, and the lack of complaints or treatment for hearing loss. The Veteran stated he has suffered from tinnitus since service which disturbs his sleep, but did not report any issues at separation from service, or until several decades after service. If the Veteran did indeed suffer from tinnitus that was so severe that it caused sleep disruption, it follows that he would have sought treatment from an appropriate physician to assist him with his hearing issue. Finding no such evidence of treatment or complaints of tinnitus prior to the Veteran's private examination, the Board affords the Veteran's contentions little probative weight. The Board has not ignored the Veteran's contention that his hearing loss and tinnitus were caused by his in-service exposure to acoustic trauma while in the service. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, such as hearing loss and tinnitus symptoms, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Finally, the Board finds that as the evidence of record shows the Veteran had normal hearing when discharged from service with no complaints of tinnitus, and the record is silent for any complaints of hearing loss or tinnitus to a compensable degree within a year from separation from service, presumptive service connection as a chronic disease is not for application. Based on the foregoing, the preponderance of evidence is against a finding that the Veteran's hearing loss and tinnitus were at least as likely as not etiologically related to his military noise exposure. Hence, the appeal must be denied as to these claims. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs