Citation Nr: 18140179 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-14 171 DATE: October 2, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The most probative evidence establishes that the Veteran’s bilateral hearing loss is not etiologically or presumptively related to his military service. 2. The most probative evidence establishes that the Veteran’s tinnitus is not etiologically or presumptively related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1958 to November 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at an August 2017 Travel Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. In October 2017, the Board reopened the issues of entitlement to service connection for bilateral hearing loss, tinnitus, and a heart disability and remanded the claims to the RO for further evidentiary development. In August 2018, the RO issued a rating decision granting service connection for a heart disability. The RO informed the Veteran this was a complete grant of his appeal and that the claim was considered resolved in full. The issues of entitlement to service connection for bilateral hearing loss and tinnitus remain in appellate status and are adjudicated as set forth below. Neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Generally, to establish direct service connection, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran was afforded a VA examination in November 2017 which determined that he had bilateral hearing loss for VA compensation purposes under the regulatory definition set forth in 38 C.F.R. § 3.385. The Veteran has consistently maintained throughout the appellate period that he experiences tinnitus, i.e., ringing in the ears. A diagnosis of tinnitus requires only personal knowledge as it comes to the Veteran through his senses, and the Veteran is competent to indicate he experiences ringing in his ears. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Consequently, the Veteran has experienced current bilateral hearing loss and tinnitus disabilities within the appeals period. The Veteran contends that his hearing loss and tinnitus are the result of auditory injury he sustained while serving as a diesel submarine operator from October 1961 to March 1968. According to the Veteran, when strong waves would hit the submarine while it was 50 feet underwater, the engine would stop, airflow would be reduced, and a vacuum would be created within the submarine cabin. The Veteran contends that this vacuum resulted in ear pain and frequently caused his ears to bleed. The Veteran also alleges that he experienced acoustic trauma due to helicopter noise while serving aboard the U.S.S. Mars from June 1971 to January 1976. Turning to the evidence of record, whisper tests performed in December 1958, June 1960, and December 1964 were normal. Audiograms performed in February 1959, September 1970, June 1979, and August 1979 did not show bilateral hearing loss as defined under 38 C.F.R. § 3.385. The Board is cognizant that establishment of direct service connection does not require the presence of a hearing loss disability by the standards of 38 C.F.R. § 3.385 during service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). To this point, the Board acknowledges that the September 1970, June 1979, and August 1979 audiograms did show pure tone thresholds at 20 decibels or greater at high frequencies, demonstrating that the Veteran experienced some degree of decreased hearing acuity while in service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). In fact, the September 1970 service examination specifically documented “high frequency hearing loss” in the examination report. As the February 1959 audiogram was conducted prior to January 1, 1967, the Board assumes that the results were reported in American Standards Association (ASA) and demonstrate a normal degree of hearing. The September 1970 audiogram clearly indicates that International Standards Organization-American National Standards Institute (ISO) standards were used, and the June and August 1979 audiograms were performed well after ISO standards had been uniformly adopted by the military on December 30, 1970. Furthermore, the Veteran’s service treatment records are silent regarding reference to, complaint of, or treatment for tinnitus during his active duty service. There is no indication in the service treatment records that the Veteran was ever treated for bilateral bleeding of the ears, or ear pain, due to change in submarine cabin pressure. Assessment of the lay evidence reveals that the Veteran has credibly and competently testified regarding in-service injury to his ears. The Veteran’s service treatment records confirm that the Veteran completed submarine school and served aboard a submarine (the U.S.S. Carp) and served aboard the U.S.S. Mars. Thus, the Veteran’s assertions are consistent with the “places, types, and circumstances of his service as shown by service records.” 38 C.F.R. § 3.303(a). Consequently, the Board concludes that the Veteran experienced in-service auditory injury sufficient to satisfy the in-service element of a direct service connection claim. Having established the presence of current disabilities and in-service auditory injury, the Board turns to the dispositive issue of nexus. While the Veteran maintains that his current bilateral hearing loss and tinnitus are the result of his in-service auditory damage due to submarine pressure and helicopter noise, the Veteran is not competent to determine the etiology of his current bilateral hearing loss or tinnitus, as he is a lay person without the requisite medical training necessary to opine on complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In June 2012, the Veteran was afforded a VA examination to assess the nature and etiology of his claimed hearing loss and tinnitus disabilities. While the examination revealed that the Veteran experienced bilateral hearing loss and tinnitus, the examiner could not provide a medical opinion regarding the etiology of the Veteran’s disabilities without resorting to speculation due to inconsistent and unreliable test results. Further, the Veteran’s claims file, to include his service treatment records, were not available for the examiner’s consideration. Due to the unreliable nature of the June 2012 VA examination, the Veteran was afforded another VA examination in November 2017 to assess his claimed disabilities. The examiner fully reviewed the Veteran’s electronic claims file and conducted an in-person interview and audiological examination. The examination report demonstrates that the examiner was aware that the August 1979 audiogram demonstrated a 30-decibel threshold in the right ear and a 35-decibel threshold in the left ear, both at 4000 Hertz. The examiner noted that the Veteran was a vague historian who responded tangentially to several questions. The medical history portion of the examination report confirms that the examiner was fully apprised of the relevant facts underlying the Veteran’s claims. The examiner charted the Veteran’s contentions regarding auditory bleeding due to submarine cabin pressure, as well as his reports of exposure to helicopter noise while picking up commissary supplies. The examiner further noted that the Veteran worked for 19 years after service in a mail sorting facility, where he was frequently exposed to high levels of noise without use of hearing protection. Following examination and review of the record, the VA examiner found that the Veteran’s bilateral hearing loss was less likely than not related to his military service. Due to the significant temporal lapse in time between the Veteran’s discharge from active duty service and the initial onset of hearing loss for VA compensation purposes, the examiner declined to etiologically link the Veteran’s current bilateral hearing loss to his military service. Regarding tinnitus, the Veteran reported to the examiner that his tinnitus had an onset of 20 years ago, which would have been in 1998, approximately 18 years after his active duty had ended. Again, due to the temporal lapse in time between the Veteran’s discharge from active duty service and the initial onset of tinnitus, as reported during the in-person interview, the examiner declined to etiologically link the Veteran’s tinnitus to his military service. As the only competent and comprehensive medical nexus opinion of record, the Board affords the November 2017 VA examiner’s opinion significant evidentiary weight. The examiner’s opinion was supported by a cogent rationale issued following an in-person audiological examination and exhaustive review of the Veteran's medical history, claims file, and lay contentions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In the absence of competent evidence linking the Veteran’s current bilateral hearing loss and tinnitus to the Veteran’s military service, the medical nexus element has not been satisfied, and the Veteran’s claim of entitlement to direct service connection must be denied. Lastly, the Board acknowledges that a presumptive service connection analysis is warranted in this case. Bilateral hearing loss and tinnitus are considered a “chronic disease” under 38 C.F.R. § 3.309(a) (as organic disease of the nervous system); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply, as well as the presumptive service connection for disabilities manifesting to a compensable degree within one year of service. 38 C.F.R. §§ 3.307, 3.309. See Fountain v. McDonald, 27 Vet. App. 258 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Initially, there is no audiological evidence proving that the Veteran experienced compensable hearing loss within one year of discharge from active duty. Regarding tinnitus, the Veteran has reported at various times since April 1995 that he first experienced “periodic” tinnitus in service, that has become more constant over the years; however, these statements are inconsistent with, and outweighed by, other, more contemporaneous lay and medical evidence of record, and are not credible. See November 2017 VA examination placing tinnitus onset in 1998. The record does not otherwise contain medical evidence establishing that the Veteran experienced tinnitus to a compensable degree within one year of discharge from active duty service. Consequently, presumptive service connection under 38 C.F.R. § 3.309(a) is denied. After a review of all the evidence, the Board finds that the Veteran’s symptoms of bilateral hearing loss and tinnitus were not chronic in service and were not continuous since service. Although service treatment records show some high frequency hearing loss in service, the Veteran did not exhibit hearing loss for VA compensation purposes until the June 2012 VA examination, approximately 32 years after discharge from active duty. Service treatment records are negative for complaints of or reference to tinnitus. At the August 1979 exit examination, the Veteran’s ears were found to be clinically normal, audiometry testing did not reveal hearing loss for VA compensation purposes, and there was no reference to tinnitus. Post-service medical records received in May 1995 are similarly silent for reports or findings of bilateral hearing loss or tinnitus. The Board does not find that the mild high frequency hearing loss documented in service constitutes chronicity for the purposes of presumptive service connection under 38 C.F.R. § 3.303(b). 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, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In the present matter, the Veteran’s in-service audiological findings do not demonstrate hearing loss, as defined under 38 C.F.R. § 3.385, sufficient to establish chronicity of bilateral hearing loss. The evidence weighs against a finding of continuity of symptomatology because the Veteran’s hearing did not decline to a degree sufficient to meet VA’s definition of hearing loss until November 2012, more than three decades after the Veteran’s active duty service had ended. Similarly, the Veteran’s service treatment records are silent for reports of tinnitus, and his statements regarding the onset and duration of his tinnitus are contradictory and lacking in credibility. The Veteran first reported tinnitus approximately 15 years after his military service had ended. The record is simply devoid of probative evidence proving the Veteran’s tinnitus was chronic in service or continuous following service. For these reasons, the evidence preponderates against finding that the Veteran has experienced chronic manifestations of bilateral hearing loss or tinnitus in service, or continuity of symptomatology since discharge from active duty service. Consequently, presumptive service connection under 38 C.F.R. § 3.303(b) is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel