Citation Nr: 1802201 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-15 979A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to October 1970. This case is before the Board of Veterans' Appeals on appeal from a December 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In July 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran's current tinnitus is related to service. 2. Bilateral hearing loss manifested more than one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. A bilateral hearing loss disability was not incurred in or aggravated by service, and such incurrence may not be presumed. 38 U.S.C. §§ 1101, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all the duty to notify and assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326 (2017). Duty to Notify As to the claims for bilateral hearing loss disability and tinnitus, VA's duty to notify was satisfied by a June 2012 letter. See 38 U.S.C. §§ 5102 , 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also, Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, personnel records, and post-service treatment records have been associated with the record. Additionally, during the appeal period the Veteran was afforded VA audiological examination in September 2012. The examiner conducted an examination and provided sufficient information regarding the Veteran's bilateral hearing loss and tinnitus disability such that the Board can render an informed determination. The Board finds that the September 2012 examination is adequate for service connection purposes. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a)(2017). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d)(2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be proven by presumption. Where the claimed condition is a "chronic disease" pursuant to 38 C.F.R. § 3.309(a) (2017), such as hearing loss and tinnitus (listed as organic diseases of the nervous system), the presumptive service connection provisions of 38 C.F.R. § 3.303(b) (2017) will apply. Service connection may be established under 38 C.F.R. § 3.303(b) (2017) if a chronic disease or injury is shown in service and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to inter-current causes. 38 C.F.R. § 3.303(b) (2017). For a showing of a chronic disorder in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. If a condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned, then a showing of continuity of symptomatology after service is required to presume service connection. Id. The determination of whether a Veteran has a hearing loss disability is governed by 38 C.F.R. § 3.385 (2017). For VA purposes, impaired hearing will be considered disabling 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 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 (2016). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85 (2017). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. III. Service Connection Analysis for Tinnitus Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The Veteran has referenced having tinnitus in various statements on record. Therefore, the Board finds that the Veteran has a current diagnosis of tinnitus. The Board notes that the Veteran's reports of noise exposure are credible and consistent with the circumstances of his service, and the acoustic trauma is deemed to have occurred. The RO in December 2012 rating decision conceded the Veteran's exposure to acoustic trauma. The RO indicated that the Veteran received a Combat Infantryman Badge and his primary occupation was an Infantryman, therefore his exposure was conceded. The review of the service treatment records (STRs) did not contain complaints of tinnitus. A December 2013 VA treatment note documented that the Veteran complained of tinnitus. The Board acknowledges that the September 2012 VA examination report the examiner provided a negative opinion. The examiner opined that the recurrent tinnitus was less likely than not caused by or a result of his military exposure. The examiner noted that there was no high frequency hearing loss or threshold shift shown at the time of separation. The examiner cited the 2006 Institute of Medicine Report titled "Noise and Military Service-Implications for Hearing Loss and Tinnitus" and concluded that based on current knowledge noise induced hearing loss (NIHL) occurred immediately, there was no scientific support for delayed onset NIHL weeks, months, or years after the exposure event. The most pronounced effected noise exposure on pure tone thresholds are measureable immediately followed the exposure. Furthermore, the Noise Manual, only seldom did noise cause a permanent tinnitus without causing hearing loss. The Veteran reported that he had a ringing in his right ear, which occurred occasionally. He also reported that he had a constant humming noise in his right ear. The Veteran indicated that he noticed the ringing in his ear for many years. In July 2017, the Veteran testified that during an airstrike many bombs were dropped around him. After, the airstrike the Veteran stated that he noticed that he had ringing in his ears. The Veteran testified that he could not remember if he had a loss of equilibrium but he could remember the intense ringing going off in his ears. The Veteran reported that ever since that event he has had ringing in his ears. The Board finds resolving reasonable doubt in the Veteran's favor; the Board finds the Veteran's reports of tinnitus in service and since service to be credible. Thus, the Board finds that the Veteran has provided competent and credible lay evidence identifying the continuity of tinnitus symptoms since service. Tinnitus is a chronic disease listed under 38 C.F.R. § 3.309(a)(2017); therefore, the provisions of 38 C.F.R. § 3.303(b)(2016) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to inter-current causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2017). As outlined above the Board found that the Veteran has competently and credibly reported a continuity of symptomatology since service in regard to tinnitus. Applying the presumption regarding chronic diseases discussed above, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). The Board acknowledges the September 2012 VA examiner rendered a negative opinion as to whether the Veteran's tinnitus was related to service. Based on the Veteran's reports and the Veteran's testimony relate to amount of noise exposure. In any event, under the provisions of 38 C.F.R. § 3.303(b) (2017), a medical nexus opinion is not required. See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (stating that "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service"). III. Service connection for Bilateral Hearing Loss The Veteran contends that his military service caused his bilateral hearing loss. For the reasons stated below, the Board finds that service connection for bilateral hearing loss is not warranted on a direct or presumptive basis. Beginning with direct service connection, the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, reflected by a September 2012 VA examination report. 38 C.F.R. § 3.385. Therefore, a current disability has been shown. Second, the Veteran has contended that his hearing loss was caused by exposure to noise related to his duties as a Combat Infantryman, and therefore in-service noise exposure is conceded. Based on this evidence, an in-service event, injury or disease has been shown and the second element of service connection met. Turning to the third element, the preponderance of the evidence is against a finding of a causal nexus between the Veteran's hearing loss and his active duty service. In July 2017, the Veteran testified that he was around bombs and machine guns while in service. While the Veteran is competent to testify to the presence of persistent symptoms since service, he is not competent to opine as to the presence of a medical nexus between his service and his current disability, as to do so requires medical expertise. Jandreau, 492 F.3d 1372. The Veteran was afforded a VA examination in September 2012. The examiner diagnosed the Veteran with sensorineural hearing loss in both the right and left ear. The examiner opined that the Veteran's hearing loss was at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. She provided the following rationale: The Veteran served in the military from 1969 to 1970. The Veteran was exposed to recoilless rifles and was a machine gunner. The Veteran reported that he did not use ear protection and he was in combat. The Veteran denied noise exposure or recreational noise exposure, other than hot rods prior to service. A pre-induction in November 1964 showed normal hearing bilaterally with the exception of a mild hearing loss at 6khz only in the left ear. The introduction audio in March 1969 showed the normal hearing from 500Hz-4kHz with 3kHz and 5kHz not tested. At separation in October 1970, the audio showed normal hearing bilaterally from 500Hz-6kHz. At there was no high frequency HL or threshold shirt known at separation, the current hearing loss was less likely as not a result of military noise exposure. She cited the 2006 Institute of Medicine Report titled "Noise and Military Service-Implications for Hearing Loss and Tinnitus" and concluded that based on current knowledge noise induced hearing loss there was no scientific support for delayed onset hearing loss weeks, months, or years after the exposure event. The most pronounced effected a given noise exposure on pure tone thresholds were measurable immediately following the exposure. Based on the competent and credible lay and medical evidence of record, the Board finds the preponderance of the evidence is against a finding of a causal nexus between the Veteran's bilateral hearing loss and active duty service. While the Veteran has reported as to his belief generally that there is a connection, his statements are outweighed by the 2012 VA medical opinion of record, which indicates that hearing loss was not apparent until well after service, and that record does not support a link between the current bilateral hearing loss and the noise exposure in service. The Board is not categorically dismissing the Veteran's lay statements. Rather, the Board finds the statements have less probative value than the VA examiner who has medical experience and training and who relied on sound medical principles in the opinion and reasoning. The VA examiner also based the opinion upon the review of the claims file. As the third element is not met, service connection for bilateral hearing loss on a direct basis is not warranted in this case. 38 C.F.R. § 3.303. Concerning service connection based on the presumption in favor of chronic diseases or continuity of symptomatology, the Veteran has been diagnosed with bilateral hearing loss, which is considered an organic disease of the nervous system and is therefore a chronic disease for VA purposes. 38 C.F.R. § 3.309 (a). As such, these theories of entitlement are potentially applicable. Service treatment records (STRs) revealed that the Veteran's induction and separation examination were normal. The November 1964 pre-induction examination report indicated that the Veteran marked "no" for any ear, nose, or throat trouble. The examiner in the clinical evaluation indicated that the Veteran's ears were normal. The Veteran's audiogram was within normal limits. Furthermore, in the October 1970, separation examination report the Veteran marked "no" for ear, nose, and throat trouble. The examiner in the clinical evaluation indicated that the Veteran's ears were normal. The Veteran's audiogram was within normal limits. The preponderance of the evidence is against a finding of sufficient manifestations in service to identify the disease entity or manifestation to a compensable degree within one year of separation from service. STRs for the period of active service are silent for any complaints of hearing difficulty in-service. Post-service treatment records are silent for any medical evidence that the Veteran had compensable hearing loss for VA purposes until 2012. Thus, the first objective evidence of compensable hearing loss is many years after the Veteran's separation from service. As noted above, the Veteran has otherwise set forth his belief that his current hearing loss is related to service, these statements are outweighed by the medical opinion. Based on this evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss either manifested in service to a degree sufficient to identify the disability or to a compensable degree within the first post-service year. As such, service connection based on the presumption in favor of chronic diseases or on continuity of symptomatology is not warranted. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Although the Veteran has established a current disability and an in-service injury, event or disease, the preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing is causally related to his service or manifested within an applicable presumptive period. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs