Citation Nr: 18139967 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-09 264 DATE: October 1, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A left or right ear hearing loss disability was not manifested in service; sensorineural hearing loss (SNHL) was not manifested to a compensable degree within one year following the Veteran’s discharge from active duty; continuity of hearing loss postservice is not shown; and the Veteran’s current bilateral hearing loss disability is not otherwise shown to be etiologically related to his service, to include as due to exposure to noise therein. 2. The Veteran’s tinnitus is reasonably shown to have begun in service and persisted since. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1967 to January 1969. These matters are before the Board on appeal from an October 2012 rating decision. Service Connection The Veteran contends that his hearing loss and tinnitus resulted from his exposure to loud noise during service. He states that during his service, including in Vietnam, his military occupation was military policeman (MP), which exposed him to acoustic trauma in combat situations, guarding convoys and firing numerous weapons in the course of his duties. His DD 214 reflects that his MOS was MP. The Veteran’s STRs are silent regarding complaints, findings, treatment, or diagnosis of hearing loss or tinnitus. On October 1966 service pre-induction examination audiometry, all puretone thresholds in the pertinent frequencies were in the normal range (between 0 and 20 decibels bilaterally). On November 1968 service separation examination audiometry, all puretone thresholds in the pertinent frequencies were in the normal range (0 decibels bilaterally); in a December 1968 report of medical history, he denied any history of ear trouble or hearing loss. [Audiometry on service pre-induction examination was reported in ASA units and was converted to ISO units for comparison purposes.] On August 2012 VA examination, the Veteran reported that he was an MP from 1967 to 1969 and was exposed to tank blasts, truck and jeep convoys, a mortar attack, and 105s; hearing protection was not available. He reported that prior to enlistment he worked in a factory for 2 years as an inspector; after service, he worked 34 years for an electric company. He reported recreational noise exposure from deer hunting for a couple of months in the fall. He reported some difficulty hearing in crowds and that he first noticed hearing problems around 3 to 4 years prior. He reported first noticing tinnitus when getting out of service; it was intermittent “ringing”, occurred about 5 to 6 times per year, and could last all day and then not recur for a couple of months. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 30 40 LEFT 20 15 30 40 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left. The examiner opined that the Veteran’s hearing loss is not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The examiner noted that the Veteran had normal hearing upon military separation (November 1968). The examiner opined that the Veteran’s tinnitus is less likely than not (less than 50% probability) caused by or a result of military noise exposure. For rationale, the examiner noted that the Veteran had normal hearing upon separation, there was no mention of tinnitus in his records, and he denied any ear trouble or hearing loss on 3 questionnaires. In a February 2015 addendum opinion, the 2012 VA examiner noted that the Veteran had normal hearing in both ears on military separation. The examiner cited the Institute of Medicine’s 2006 study Noise and Military Service, which indicates that there is no scientific basis on which to conclude that a hearing loss that appears many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. The examiner quoted the Institute’s study that there is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure; although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The examiner opined that this study remains the definitive consensus in this matter and, therefore, that the Veteran’s current hearing loss is not as least as likely as not related to military noise exposure. Postservice treatment records do not include any further opinions regarding the etiology of the Veteran’s hearing loss or tinnitus. 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; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disease first diagnosed after service may be service connected if all the evidence, including pertinent service records, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include SNHL and tinnitus as organic diseases of the nervous system), may service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for organic diseases of nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Nexus of a chronic disease listed in § 3.309(a) to service may be established by showing continuity of symptomatology following service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Service connection for bilateral hearing loss is denied. For purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, and 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. Hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by audiometric testing during a claimant’s period of active military service for service connection for such disability to be granted. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A claimant who seeks to establish service connection for hearing loss must show, as required in any claim of service connection, that a current hearing loss disability is the result of injury or disease in service, the determination of which depends on review of all the evidence of record including that pertinent to service. It is not in dispute that the Veteran now has a bilateral hearing loss disability, as such disability (as defined in 38 C.F.R. § 3.385) was found on VA examination. It may also be conceded (based on the Veteran’s accounts of his duties as an MP in Vietnam) that during service he was likely exposed to hazardous levels of noise. What remains necessary to substantiate the claim of service connection for hearing loss is evidence that his current bilateral hearing loss is etiologically related to his service/acknowledged exposure to noise therein. A hearing loss disability was not manifested in service, and SNHL was not shown manifested to a compensable degree within a year following the Veteran’s discharge from service. Accordingly, service connection for the Veteran’s bilateral hearing loss on the basis that it became manifest in service, and persisted, or on a chronic disease presumptive basis (under 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a)) is not warranted. As SNHL is a chronic disease listed in 38 C.F.R. § 3.309(a) (as organic disease of the nervous system), the Board has considered whether service connection may be granted based on continuity of symptomatology. However, continuity of symptomatology of bilateral hearing loss is not shown. Hearing loss was not noted in service, to include on November 1968 service separation examination (when audiometry was normal) or for many years thereafter. To the extent that the Veteran may be seeking to establish continuity of hearing loss since service by his current accounts of such, under governing regulation hearing loss disability must be established by audiometry specified in governing regulation (38 C.F.R. § 4.85). He is not competent to establish based solely on his observation that he has had a hearing loss continually since service. Therefore, service connection for the bilateral SNHL based on continuity of symptomatology is not warranted. The preponderance of the evidence is also against a finding that the Veteran’s current bilateral hearing loss is otherwise shown be etiologically related to his service. On the dispositive question of a nexus between the current disability and service/exposure to noise therein, the only competent (medical) evidence of record is in the reports of the 2012 VA examination and addendum opinion. The Board finds the 2012 VA examination and 2015 those reports to (cumulatively, as the examination report without addendum lacked adequate rationale) be entitled to great probative weight, as the examiner expressed familiarity with the Veteran’s actual medical history and included adequate rationale for the conclusions reached that cited to accurate factual data, and current medical knowledge in the matter. While the Veteran is competent to report his perceptions of reduced hearing acuity, where onset in service and/or continuity are not shown, he is not competent to provide a nexus opinion relating hearing loss to exposure to noise during remote service. The question is medically complex, and requires medical expertise which he, as a layman, lacks; he does not cite to any supporting medical opinion (or treatise). Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Notably, the Veteran reported on 2012 VA examination that he first noticed hearing problems about 3 to 4 years earlier, or approximately 40 years after service. Accordingly, the preponderance of the evidence is against the claim of service connection for bilateral hearing loss, and the appeal in the matter must be denied. 2. Service connection for tinnitus is granted. It is not in dispute that the Veteran has tinnitus, as such diagnosis is established by subjective complaints (and generally is incapable of objective verification); no medical provider has rejected (and the Board finds no reason to question) the Veteran’s reports that he has tinnitus. Because tinnitus (as organic disease of the nervous system) is a chronic disease listed in 38 C.F.R. § 3.309(a), one way of establishing a nexus between the tinnitus and service is by showing continuity of symptoms. See Walker, supra. The Veteran has indicated that that is the situation in the instant case. He has reported the onset of a recurring tinnitus upon separation from service; and the Board finds no reason to question the credibility of his accounts. His reports of exposure to noise trauma in service and onset of tinnitus then are not inconsistent with the circumstances of his service/his MOS, and the Board finds plausible his report that a recurring tinnitus began in service. The 2012/2015 VA examiner did not address the Veteran’s lay accounts of onset of a recurring tinnitus in service, and the Board finds that provider’s opinion against the Veteran’s claim to be less than persuasive. Resolving remaining reasonable doubt in the Veteran’s favor as required, the Board finds that the Veteran’s tinnitus began in service and has persisted since. The requirements for establishing service connection are met; service connection for tinnitus is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Schechner, Counsel