Citation Nr: 1761123 Decision Date: 12/29/17 Archive Date: 01/02/18 DOCKET NO. 16-31 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to June 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran requested a Board hearing via videoconference in his June 2016 substantive appeal. However, in March 2017 correspondence, the Veteran withdrew his hearing request. Therefore, the Veteran's Board hearing request is withdrawn. See 38 C.F.R. § 20.704 (e) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest to a compensable degree within one year of the Veteran's discharge from service. 2. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest to a compensable degree within one year of the Veteran's discharge from service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 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). The Board has reviewed all of the evidence in the Veteran's claims file, including his service treatment records (STRs), post-service treatment records, VA examination reports, hearing testimony, and statements submitted in support of his claims. In this regard, the Board notes that, although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, all of the extensive evidence of record. Indeed, it has been held that while the Board must review the entire record, it need not discuss each piece of evidence in rendering a decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis will focus specifically on the evidence that is needed to substantiate the Veteran's claims for service connection for bilateral hearing loss and tinnitus. I. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id., also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the 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 500, 1000, 2000, 3000, 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. The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Bilateral hearing loss The Veteran contends he currently has bilateral hearing loss as a result of his military service. Specifically, the Veteran alleges that during his active duty he served as a pilot and flew B 25 aircraft, which have been noted to be particularly noisy. As such, he claims that service connection for bilateral hearing loss is warranted. As an initial matter, the Board observes that the Veteran's service treatment records do not contain any complaints, treatment, or findings related to hearing loss. The Board notes that prior to October 31, 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate date comparison, where applicable, the ASA standards have been converted to ISO-ANSI standards. In this regard, the Veteran's June 1953 examination conducted at the time of his entrance to active duty reflects the following pure tone thresholds, with the ASA pure tone thresholds represented by the digit not contained in parentheses, while the converted ISO-ANSI pure tone thresholds are contained in the parentheses: 500 1000 2000 3000 4000 Right 10(25) 10(20) 10(20) - 10(15) Left 5(20) 5(15) 5(15) - 5(10) Furthermore, in a June 1954 examination conducted for pilot training, the Veteran's prone thresholds were as follows: 500 1000 2000 3000 4000 Right 10(25) 5(15) 0(10) - 5(10) Left 10(25) 5(15) 5(15) - 10(15) Despite no evidence of any hearing loss at the time of the Veteran's discharge, there is no dispute that the Veteran was exposed to acoustic trauma during service. In this regard, his service personnel records reflect that the Veteran was a pilot for the Air Force. Furthermore, the Veteran contends that he flew B 25 planes which are consistent with the Veteran's reports of exposure. As such, the Board finds the Veteran's reports of exposure to noise from airplanes consistent with the circumstances of his service. Moreover, the Veteran is competent to testify as to his in-service noise exposure. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Thus, the Board acknowledges the Veteran's in-service noise exposure. The Board further finds that the Veteran has a current disability of bilateral hearing loss as defined by VA. 38 C.F.R. § 3.385. Specifically, the VA examination conducted in December 2015 as well as a private audiogram conducted in February 2017, revealed a diagnosis consistent with VA regulations. As such, the remaining inquiry is whether there is a nexus, or link, between the Veteran's current hearing loss and his acknowledged noise exposure during his military service. In this regard, the VA examination conducted in December 2015 revealed the following pure tone thresholds: 500 1000 2000 3000 4000 Avg Right 10 15 60 80 100 64 Left 25 45 60 65 75 61 Speech recognition scores were 76 percent in the right ear and 88 percent in left ear. As previously noted, the VA examiner noted that the Veteran had bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in service. The examiner provided the rationale that there was no clear nexus of the Veteran's current hearing loss to service, even with the conceded probability of significant in service noise exposure. The examiner noted that the Veteran's history as well as his buddy statements were consistent with a progressively worsening hearing loss manifesting itself decades after military separation, with significant communication difficulty and progressive worsening over the past 10-20 years. The examiner noted that the Veteran did not recall any specific auditory symptoms as an after-effect of claimed in-service noise exposure. Furthermore, the examiner stated that the audiometric configuration is not highly indicative of a noise induced etiology. Furthermore the Veteran reported some possible post-military recreational noise exposure flying aircraft for many years as part of the "UFOctogenarians." Therefore, the examiner stated that the Veteran had risk factors for his hearing loss (his age, post-military noise exposure) which provided a possible etiology. The Veteran submitted a private audiogram and opinion in February 2017. The audiogram revealed the following pure tone thresholds: 500 1000 2000 3000 4000 Right 5 10 55 80 110 Left 25 45 75 75 90 The Veteran's private doctor noted that the Veteran had profound high frequency sensorineural hearing loss and provided the opinion that such was likely due to military service noise exposure. The Board is allowed to favor one medical opinion over another, provided it gives an adequate statement of its reasons and bases for doing so. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In this regard, the Board finds the December 2015 VA examiner's opinion most probative of the nexus element as he provided a detailed rationale for his opinion after reviewing the Veteran's claims file as well as after examining the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App.295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In contrast, the February 2017 private opinion was not supported by any rationale. Specifically, such treatment provider offered no support for the opinion that the Veteran's hearing loss was caused by his military service. There is also no indication that the private physician reviewed the Veteran's medical history. Conversely, the December 2015 VA examiner, in reaching the conclusion that there was no nexus between the Veteran's military service and his current hearing loss, considered the Veteran's treatment history as documented in the claims file and took into account the evidence of record to support the conclusion reached. Rather than simply stating that the Veteran's hearing was normal at entrance and discharge from service, the examiner further noted that there was no significant shift in hearing when considering all of the audiograms during service. Because the examiner provided a thorough analysis of the evidence of record in forming an opinion, the Board finds the December 2015 VA opinion as to nexus to be the most probative. Thus, the preponderance of the evidence is against a finding of nexus between the Veteran's military service and current disability. The Board further notes that the Veteran submitted various lay statements in December 2014 and January 2015 as well as articles in support of his claims. The Veteran's friend and son noted that the Veteran suffered from hearing loss which had gotten progressively worse. Furthermore, the Veteran submitted various articles indicating that the B 25 was a particularly noisy plane which could impact the pilots hearing. To the extent that the Veteran has alleged a continuity of bilateral hearing loss since military service, the Board finds that such statements are inconsistent with the evidence of record. In addition, the lay statements provided by the Veteran indicate that hearing loss manifested at the earliest in 2004 or 2005. Therefore, the Board accords the Veteran's current statements regarding a continuity of hearing loss symptomatology since service to be inconsistent with the contemporaneous evidence of record as well as his prior statements. Therefore, the Board finds such statements to be not credible. Moreover, the clinical evidence of record fails to show that bilateral hearing loss manifested until approximately 2004, nearly forty-seven years after service. Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. In its analysis, the Board has considered the Veteran's statements linking his military service, to include noise exposure, to his current bilateral hearing loss. In this regard, the Veteran is competent to report the hearing loss symptoms he has experienced, when those symptoms began, and the noise to which he was exposed in service. This is because these things require only personal knowledge, as they come to him through his senses. See Layno, 6 Vet. App. at 470. However, the Veteran is not competent to attribute his hearing loss to any instance of his military service. He has not demonstrated that he is an expert in determining the etiology of hearing loss and is a layperson in this regard. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). The Veteran's statements linking his current hearing loss to his military service are not within the realm of knowledge of a layperson. Rather, such is a complex question that requires expertise. Specifically, it involves the impact of acoustic trauma and loud noises on the auditory functioning of the ear. Thus, the Veteran is not competent to render an opinion regarding the etiology of his bilateral hearing loss and his opinion on such matter is not probative. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Finally, the Board acknowledges that the Veteran submitted articles that indicated that pilots who flew B 25 planes experienced acoustic trauma during service and that such could lead to hearing problems. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must "not simply provide speculative generic statements not relevant to the [claimant]'s claim." Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, "standing alone," must discuss "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra.)). In this case, the medical articles submitted by the Veteran only provide general information as to the possibility that a relationship exists between pilots who flew B 25 planes and hearing loss. They are not accompanied by any corresponding clinical evidence specific to the Veteran, and do not suggest a generic relationship between the Veteran's exposure to acoustic trauma in service and his current hearing loss with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board finds this information to not be relevant as to the matter for consideration and, therefore, is not probative to this case. Wallin, supra; Sacks, supra. Accordingly, as bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service and bilateral hearing loss did not manifest to a compensable degree within one year of the Veteran's discharge from service, service connection for bilateral hearing loss is not warranted. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for bilateral hearing loss. Thus, that doctrine is not applicable in the instant appeal, and the Veteran's claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Tinnitus The Veteran is seeking service connection for tinnitus, which he has asserted was incurred as a result of his exposure to noise during service. In this regard, the Veteran claims that his exposure to acoustic trauma as a pilot flying B 25 planes caused his current tinnitus. The Veteran's service treatment records do not contain any complaints, treatments, or findings related to tinnitus. As previously noted the Veteran's hearing was within normal limits at the time of his enlistment examination, and there was no mention or report of tinnitus. However, the Board has conceded the Veteran's in-service noise exposure as he is competent to report such. See Washington, 19 Vet. App. at 368; Layno, 6 Vet. App. at 469-70. Furthermore, that which he has reported is consistent with the circumstances of his service. The Board notes that while the record does not reflect a current diagnosis of tinnitus, the Veteran has alleged that he has tinnitus, and as tinnitus is a disorder capable of lay observation, the Board finds that the second element of service connection is met. See Charles v. Principi, 16 Vet. App. 370 (2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the remaining inquiry is whether his tinnitus is related to his in-service noise exposure. The December 2015 VA examiner found that the alleged tinnitus was less likely than not a symptom associated with the Veteran's hearing loss. Furthermore, the examiner reported that the Veteran denied tinnitus at the time of the examination and stated that he had not had tinnitus at any time prior to his examination. He also noted that the Veteran denied any tinnitus as a direct auditory after-effect of in-service noise exposure. Based on the foregoing, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for tinnitus. Furthermore, while considered a chronic disease, tinnitus is not shown during service, and the Veteran did not complain of or allege that he suffered from tinnitus for at least fifty-eight years after service and there is no credible evidence of continuity of related symptomatology after service. In this regard, while the Veteran has self-diagnosed tinnitus, the probative evidence of record demonstrates that such is not related to his service. The Board places great probative weight on the December 2015 VA examiner's opinion. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. As the probative evidence of record demonstrates that any current tinnitus is not related to service, service connection is not warranted. Furthermore, the Board notes that there is no contrary opinion of record. The Board notes that the Veteran has generally contended on his own behalf that his tinnitus is related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno, 6 Vet. App. at 469-70. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board finds that the question regarding the potential relationship between the Veteran's tinnitus and any instance of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, while the Veteran is competent to describe his purported exposure to noise during service as well as the current manifestations of tinnitus, the Board accords his statements regarding the etiology of such disorders little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). The question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. The determination of etiology of tinnitus requires the interpretation of results found on physical examination and knowledge of the internal auditory process. The question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his in-service noise exposure and tinnitus. In contrast, the December 2015 VA examiner took into consideration all the relevant facts in providing an opinion, to include the Veteran's in-service noise exposure as well as the current nature of his claimed tinnitus. As such, the Board accords greater probative weight to the VA examiner's opinion. Therefore, the Board finds that tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. Consequently, service connection on a direct or presumptive basis is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs