Citation Nr: 1802348 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-33 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION 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). The Veteran had active service from May 1966 to May 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A notice of disagreement was received in October 2015, a statement of the case was issued in July 2016, and a VA Form 9 was received in July 2016. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not manifest during service, is not causally or etiologically due to service and did not have an onset within one year of discharge. 2. The Veteran's tinnitus did not manifest during service or for many years thereafter, and is not causally or etiologically due to service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not established. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. Service connection for tinnitus is not established. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In this case, the Veteran used VA Form 21-526EZ to file a Fully Developed Claim in May 2015. The requisite VCAA notice was attached to that form, and the Veteran verified receipt of the notice. The duty to notify has been fulfilled. The duty to assist has also been met, and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records, VA treatment records, and private treatment records. The Veteran was afforded a VA examination. Based on the foregoing, the Board concludes that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duties. II. Service Connection Claims The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. Applicable Laws The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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 evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases 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. 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. The use of continuity of symptomatology to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) as noted above. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The Board must weigh any competent lay evidence and make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno, supra. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). A. Bilateral Hearing Loss 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, 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. Exposure to loud noise during service is conceded based on the Veteran's military occupation specialty (MOS) as a Light Vehicle Driver. See DD214; September 2015 rating decision. The Veteran has a current diagnosis of a bilateral hearing loss disability, pursuant to 38 C.F.R. § 3.385. See September 2015 VA examination. The pertinent inquiry is whether the in-service noise exposure caused the Veteran's current bilateral hearing loss. Unfortunately, the Board concludes it did not. First, there is no indication of post-service hearing loss until many years after service. There is no credible persuasive evidence to support a presumption of service connection based on manifestation of hearing loss to a degree of 10 percent disabling within one year from discharge from service. Furthermore, the September 2015 VA examiner opined that the Veteran's current hearing loss is not due to his noise exposure during service. The examiner noted the Veteran's reported exposure to the firing range, school for diesel maintenance, and the motor pool during service. Prior to service, the Veteran reported he worked in a salvage yard, and after service, he went back to the salvage yard until 1971 or 1972, was a mechanic until 1998, and then became a truck driver for about 10 years. The Veteran also reported some hunting (2-3 times) and a history of owning a motorcycle. The examiner explained that when comparing audiological evaluations from entrance to separation, all thresholds remained within normal limits bilaterally, with no evidence of a shift. The examiner stated that he was not denying the Veteran's exposure to noise; rather he was stating that the exposure did not result in the Veteran's current hearing loss. Continuing, the examiner stated that when evaluating the Veteran's current degree of hearing loss, one cannot rule out contributions from his civilian occupation and the aging process. The examiner cited to the Institute of Medicine (2005), which concluded that based on current knowledge of cochlear physiology, there is insufficient scientific evidence for delayed-onset hearing loss secondary to military noise exposure; hearing loss should occur at the time of the exposure. The examiner indicated that there is not sufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss can develop long after cessation of noise exposure. The examiner noted that the available anatomical and physiologic evidence suggests that delayed post-exposure noise induced hearing loss is not likely. Concluding, the examiner noted that if hearing is normal on discharge and there is no permanent significant threshold shift greater than normal progression and test re-test variability during military service, then there is no basis on which to conclude that a current hearing loss is causally related to military service, including noise exposure. As such, the examiner opined that there is no nexus between the Veteran's current hearing loss and military service. The Board finds the September 2015 VA examiner's opinion to be highly probative. These statements were based on an accurate medical history, and the examiner's report included a thorough, detailed review of the Veteran's in-service and post-service treatment records. In short, while the Veteran was exposed to in-service noise exposure and currently has a diagnosis of bilateral hearing loss, no persuasive medical evidence shows that the current hearing loss is a result of noise exposure during his military service. The Board has considered the Veteran's statements concerning his hearing loss. The Board acknowledges that he is competent to give evidence about what he experiences; for example, the Veteran is competent to describe his hearing difficulties. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the lay statements are outweighed by the service treatment records, post-service treatment records, and the medical opinion discussed above. The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss. Therefore, the Veteran's lay opinion could possibly be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, determining the precise etiology of the Veteran's hearing loss is not a simple question as there are conceivably multiple potential etiologies of the Veteran's hearing loss. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). Thus, there is insufficient persuasive evidence that establishes a link between the Veteran's hearing loss and his service. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept a Veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). In reaching this decision, the Board has 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. As such, that doctrine is not applicable in the instant appeal, and the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Tinnitus The Veteran asserts his current tinnitus is due to exposure to acoustic trauma during service. The Veteran was diagnosed with tinnitus in a September 2015 VA examination. The Board therefore finds that the evidence demonstrates a current diagnosis, meeting the first requirement for the establishment of service connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran contends that his tinnitus is due to in-service noise exposure. As noted previously, the Veteran's noise exposure is conceded; therefore, the second element of service connection is met. See Shedden, 381 F.3d at 1166-67. Turning to the question of whether there is a nexus, or link, between the current tinnitus and service, the evidence indicates that tinnitus was not noted during service or on separation examination. In his claim for service connection, the Veteran indicated that his tinnitus began during service. See May 2015 VA Form 21-526EZ. The Board notes that the Veteran is competent to report symptoms of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). In contrast, however, the Veteran reported during his September 2015 VA examination that his tinnitus began 15 to 20 years prior to the examination, which would be decades after his discharge from service. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. In weighing credibility, the Board may consider interest bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desires for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498, 507-13 (1995). In this case, as noted, the record contains the Veteran's May 2015 claim indicating an onset of tinnitus during service and his September 2015 VA examination, where he reported an onset of approximately 1995 to 2000. The Board finds that the Veteran's statements concerning the onset and continuity of his symptoms of tinnitus lack credibility, as they are inconsistent. In this function, the Board has reviewed the medical history including service treatment records, VA treatment records, reports of VA examination, personnel records, and the statements from the Veteran and his representative. It is of particular significance that the Veteran reported no complaints or symptoms of tinnitus during service. On the May 1967 Report of Medical History for separation, the Veteran wrote that he was in "ok" health and indicated that he had no ear trouble or hearing loss, and signed his name under that statement. The post-service treatment records also do not contain any complaints of tinnitus. The record reflects that it was not until after filing a claim for service connection that the Veteran first reported tinnitus and attributed it to his military service. Therefore, based on the conflicting statements of record, the Board finds that the Veteran's lay statements regarding the onset of his tinnitus are not credible. Consequently, the Board assigns little probative value to them. The Veteran was afforded a VA examination in September 2015, at which time, based on the Veteran's service treatment records that were negative for any concern, diagnosis or treatment of tinnitus during service, and his statements of an onset of tinnitus many years post-service, the VA examiner opined that the Veteran's tinnitus was less likely due to service. The Board finds the September 2015 VA examiner's opinion to be highly probative. These statements were based on an accurate medical history, and the examiner's report included a thorough, detailed review of the Veteran's in-service and post-service treatment records. In this case, as explained above, the credible and probative medical evidence does not show that the Veteran had an in-service onset of tinnitus. Rather, it shows following the Veteran's exposure to noise in service, he denied any ear trouble and was found to have no defect or abnormality of the ears, eardrums, or auditory acuity, as well as any organic defect, on separation examination. Additionally, the diagnosis of tinnitus first occurred in September 2015, more than 45 years after service. While the passage of many years between discharge from active service and medical complaint of a claimed disability, particularly when the Veteran has complained of and sought treatment for other conditions during that time, is not dispositive as to nexus, it is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, for the reasons discussed above, chronicity during service or continuity of symptomatology after service is not demonstrated by the evidence of record. 38 C.F.R. § 3.303 (b), 3.307, 3.309. The competent evidence concerning the nature and etiology of the Veteran's tinnitus was provided by the VA examiner who interviewed and assessed him during the appeal. To the extent that any lay evidence is deemed competent or credible, it is outweighed by the competent medical evidence that evaluated the etiology of the Veteran's tinnitus. Notably, there is no medical opinion of record that provides a positive nexus opinion connecting the tinnitus to the noise exposure in service. Therefore, based on the above, the Board finds that the evidence of record is against a finding of service connection for tinnitus on any basis and must be denied. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102 (2016), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs