Citation Nr: 1804164 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 17-46 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1956 to February 1960. He served honorably in the United States Air Force, with additional service in the California Air National Guard from September 1981 to June 1982. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. 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) (2012). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is not attributable to his active military service. 2. The Veteran's tinnitus is not attributable to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1153, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Direct Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). Presumptive Service Connection and Continuity of Symptomatology For certain "chronic diseases," presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the chronic disease became 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. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Evaluating Lay Evidence For the purpose of evaluating lay evidence, to include a veteran's statements about the circumstances of his service, competent evidence is "limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is "not competent to opine as to medical etiology or render medical opinions." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Analysis In the present case, the Board finds that the Veteran has bilateral hearing loss (BHL) and tinnitus. During the pendency of this claim in December 2016, a VA examiner diagnosed him with sensorineural hearing loss and tinnitus in both ears. The Board also finds that the Veteran was exposed to acoustic trauma during his period of active service. The Veteran served as a vehicle operator during his active duty service in the Air Force, and he was stationed with a transportation squadron. The Veteran contends that as a vehicle operator he was exposed to "loud acoustic trauma" without hearing protection from "engines of all sorts," to include aircraft. His contentions are consistent with the circumstances of his service. However, turning to the question of whether there is a nexus, or link, between the current shown disabilities and service, the Board finds that the preponderance of the evidence is against a finding that the Veteran's BHL and tinnitus were incurred in service. The Veteran contends that his BHL and tinnitus are exclusively due to his active duty service in the Air Force from February 1956 to February 1960. Regarding the Veteran's BHL, the December 2016 VA examiner opined that it is not "at least as likely as not (50% probability or greater) caused by or a result of" his service. As to tinnitus, the examiner opined that it is "less likely than not (less than 50% probability) caused by or a result of" his service. For both disabilities, the primary rationale for the examiner's adequate opinion was the same: when the Veteran enlisted in the California Air National Guard in September 1981, an associated Report of Medical History showed that his hearing was within normal limits. In addition, the Board notes that the Veteran affirmatively reported no current or past hearing loss, while at the same time he acknowledged other medical history pertaining to an appendectomy and wearing glasses. Accordingly, there is not a nexus between the Veteran's current disabilities and his service, so the third element of direct service connection has not been met. Last, the Board notes that it has considered the applicability of alternative theories of entitlement, to include presumptive service connection and continuity of symptomatology. However, as there is no evidence that the Veteran's BHL and tinnitus were noted during service; as the evidence, including the 1981 medical record, does not support a finding of continuity of symptomatology; and as there is no evidence that hearing loss and tinnitus were manifested to a compensable degree during the year following service, the Veteran's claim is not warranted. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs