Citation Nr: 18141076 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-60 467 DATE: October 9, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not arise in service, is not otherwise etiologically related to service, and did not manifest to at least a 10 percent degree within a year of separation from active duty service. 2. The Veteran’s tinnitus did not arise in service, is not otherwise etiologically related to service, and did not manifest to at least a 10 percent degree within a year of separation from active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5103, 5103A; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from January 1968 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) From a November 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted on a presumptive basis for certain diseases, including organic diseases of the nervous system, that have been identified as chronic disabilities if they first manifest to a degree of 10 percent or more within the prescribed time period after separation from active duty service. 38 C.F.R. §§ 3.307, 3.309. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels or dBs) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). However, for VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. 1. Entitlement to service connection for bilateral hearing loss At the outset, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss. Specifically, he attended an October 2015 VA medical examination, which included the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 40 60 LEFT 25 25 25 35 55 As the Veteran’s hearing thresholds at the 4000 Hertz frequency in each ear exceeded 40 decibels, the Board finds that these audiometric findings confirm that he has a hearing loss disability for VA purposes in each ear. Accordingly, the Board will turn to the central question of whether this current hearing loss disability arose in or is otherwise etiologically related to active duty service. At the May 2017 Board hearing, the Veteran stated that he was stationed in Vietnam from 1968 to 1969 as a jet engine mechanic and was exposed to jet noise and a significant amount of weapons fire. He explained that after service, he became a firefighter in the early 1970s and stated that although he probably had some hearing loss when he began working at the fire department, it was not significant enough to prevent him from being hired. He also agreed that he was certainly exposed to loud noises after service and stated that he did not know whether or not his hearing loss started in Vietnam or not, but questioned how VA could tell whether his hearing loss was attributable to his work as a firefighter rather than his service in the Air Force. The Board is sympathetic to the Veteran’s contentions and does not doubt the sincerity of his statements. However, there is no evidence that he possesses the medical knowledge, training, or experience necessary to provide a competent opinion regarding the medically complex question of the etiology and clinical onset of his hearing loss. Similarly, the Board is charged with evaluating all of the competent and probative evidence of record in accordance with the legal standards set forth above. The Board is also 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Unfortunately, the Board finds that the preponderance of the probative, credible, and competent evidence weighs against a finding that the Veteran’s hearing loss is etiologically related to service or first manifested to a compensable degree within a year of his discharge from active duty service. As the Veteran stated at the hearing, his DD Form 214 confirms that he worked as a jet engine mechanic while serving on active duty, which the Board finds likely exposed him to significant in-service exposure to loud noises. However, a review of the Veteran’s service treatment records fails to uncover any evidence that the Veteran reported of or was treated for symptoms of hearing loss during his active duty service. Rather, at the time of his December 1968 separation examination, he denied symptoms of hearing loss or any ear, nose, or throat trouble. Audiometric test results taken at that time were also normal. To evaluate the question of whether the Veteran’s hearing loss is related to service, VA scheduled the October 2015 audiological examination referenced above. After personally examining the Veteran and reviewing the claims file, the examiner ultimately opined that it was less likely than not the Veteran’s bilateral sensorineural hearing loss was caused by or a result of his military service. The examiner explained that the Veteran’s service treatment records did not show a significant threshold shift in his audiometric test results beyond normal variability, which he explained indicates it was unlikely that the Veteran had a hearing injury while in service. Citing a study from the Institute of Medicine of the National Academies and the American College of Occupational and Environmental Medicine, the examiner also explained that the delayed onset of hearing loss due to previous noise exposure is unlikely to occur. Given the absence of evidence of a significant threshold shift beyond normal variability in service, the examiner then stated that any hearing loss occurring following service is less likely as not related to noise exposure while in service. As stated above, the Board does not doubt the sincerity of the Veteran’s statements regarding the onset of his hearing loss, but does not find that he is able to provide a competent opinion regarding the etiology of this disability. As such, the Board finds that the only competent opinion regarding this question is that of the October 2015 VA audiological examiner. This negative opinion has been accompanied by a detailed and persuasive rationale that cites relevant medical literature and appears consistent with the Veteran’s service treatment records. As such, the Board finds that it is of significant probative value in determining whether the Veteran’s active duty service caused his current hearing loss. Given the lack of probative and competent evidence suggesting that the Veteran’s service in the Air Force caused his hearing loss, the lack of any competent evidence of hearing loss to at least a 10 percent degree during service or the year following his separation from active duty service, the Board finds that the preponderance of the probative and competent evidence in the record is against the Veteran’s claim. As such, the Veteran’s claim for service connection for bilateral hearing loss must be denied and the doctrine of the benefit of the doubt is not for application. 2. Entitlement to service connection for tinnitus The evidence relating to the etiology and onset of the Veteran’s tinnitus is similar to that which relates to his hearing loss. At the October 2015 VA audiological examination, he was given a diagnosis of tinnitus. As such, the Board is convinced that there is a current disability of tinnitus for VA purposes. However, as was the case with the Veteran’s hearing loss, the probative and competent evidence of record is against a finding that it is at least as likely as not that tinnitus is etiologically related to service. As explained above, the 2015 VA examiner clarified that although the Veteran was exposed to significant noise in service, that does not necessarily mean that the Veteran also experienced an acoustic injury in service. Rather, the examiner stated that the lack of any abnormal hearing threshold shifts during service indicated that any such acoustic injury did not occur. Similarly, citing the medical study the Institute of Medicine of the National Academies and the American College of Occupational and Environmental Medicine, the examiner explained that it was unlikely that there was a delayed onset in the Veteran’s tinnitus. For these reasons, the examiner stated that it was less likely than not that the Veteran’s reported tinnitus was caused by or a result of noise exposure while in service. For the reasons stated above, this opinion weighs heavily against the Veteran’s claim, the Board finds that the preponderance of the probative and competent evidence of record indicates that the Veteran’s current tinnitus is not etiologically related to active duty service. The Board also finds no competent evidence to indicate that the Veteran’s tinnitus first manifested within a year of his separation from the United States Air Force. On the contrary, at the May 2017 Board hearing, the Veteran explicitly stated that he did not notice symptoms of tinnitus until roughly five or six years earlier. Thus, the evidence does not show continuous symptoms since service discharge. Ultimately, the Board finds that the criteria for service connection for tinnitus have not been met and the competent evidence of record is against the Veteran’s claim. Therefore, the doctrine of the benefit of the doubt is not for application and the claim for service connection for tinnitus must be denied. REASONS FOR REMAND Entitlement to service connection for PTSD and an acquired psychiatric disorder other than PTSD, to include depression is remanded. In a December 2014 VA medical evaluation, the Veteran stated that he was receiving ongoing psychiatric care through a non-VA provider. As the nature and onset of the Veteran’s psychiatric disability or disabilities is central to his claim for service connection, a remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for Kaiser. Make two requests for the authorized records from Kaiser, unless it is clear after the first request that a second request would be futile. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel