Citation Nr: 18141541 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 17-28 865 DATE: October 10, 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 probative evidence of record does not show the Veteran’s bilateral hearing loss was manifest during service, within one year of service or is otherwise related to his active duty service. 2. The probative evidence of record does not show the Veteran’s tinnitus was manifest during service, within one year of service or is otherwise related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1978 to February 1981. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. In addition, sensorineural hearing loss and tinnitus will be presumed to have been incurred in or aggravated by service if either had become manifest to a degree of 10 percent or more within one year of a veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period 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. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The probative value attributed to a medical opinion issued by either VA or private treatment providers to support service connection depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran’s claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board must consider whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in supporting objective clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejects medical opinions that do not indicate whether the physicians actually examined the veteran, do not provide the extent of the examination, and do not provide supporting clinical data). The Court has held that a bare conclusion, even when reached by a health care professional, is not probative without an accurate factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). 1. Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to his active duty service, to include his in-service occupation as a cannon crewman. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Pursuant to 38 C.F.R. § 3.385 (a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. The Board acknowledges that the Veteran has a current diagnosis of bilateral hearing loss and meets the above VA threshold. Additionally, the evidence establishes that he was exposed to noise, as he worked as a cannon crewman in service. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service disease or injury and the present. See Shedden. The evidence of record shows the Veteran had normal hearing at his January 1981 separation examination. In May 2016, the Veteran received a VA examination. The examiner opined that the Veteran’s hearing loss in his left and right ear was less likely than not caused by or a result of an event in military service. The examiner rationalized that the Veteran’s audiograms in-service showed normal hearing in both ears. The examiner further explained that there was no evidence of hearing loss and tinnitus attributable to military service during the period of active duty, even after being exposed to high intensity noise levels. The examiner stated that other factors, such as normal aging process, can cause hearing loss and tinnitus. The Board notes that the Veteran has not provided any additional medical evidence showing treatment for his bilateral hearing loss or any other evidence showing the etiology of his claimed condition. The Veteran has further not provided any statements regarding his claimed condition or potential previous treatment. The Board finds the May 2016 VA medical examination and opinion to be of significant probative value in determining that the Veteran’s bilateral hearing loss is not related to his period of service. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physician’s opinion was based on review of the Veteran’s lay contentions, his reported medical history, and review of the medical evidence of record. Further, a complete and thorough rationale was provided for the opinion rendered. The Board acknowledges the Veteran’s assertions that his hearing loss is due to in-service noise exposure. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any hearing disability is related to his military service, to include noise exposure from field cannons, requires medical expertise that the Veteran has not demonstrated since hearing loss can have many causes. Moreover, the VA examiner’s opinion, which reflects medical expertise, is more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). The Board has also considered whether hearing loss is warranted on a presumptive basis, however, there is no evidence that the Veteran had hearing loss to a compensable degree within 1 year after discharge from service or that he experienced hearing loss continuously since discharge from service. Further, the Board again notes that the Veteran has not provided any statements regarding experiencing hearing loss since service, or of a prior medical history regarding his hearing loss. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Tinnitus The Veteran contends that he currently suffers from tinnitus and that it is related to his active service. The Board finds that service connection for tinnitus is not warranted. As with the Veteran’s hearing loss claim, the Board acknowledges that the Veteran also has a current diagnosis of tinnitus and that he was exposed to noise in service. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service disease or injury and the present. In May 2015, the Veteran was provided a hearing examination. The Veteran reported that he suffered from constant tinnitus in his right ear for a few years, however, he was unable to indicate the circumstance of onset of his tinnitus. The examiner opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with hearing loss, as tinnitus is a known symptom associated with hearing loss. The examiner also opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. As with the opinion provided for hearing loss, the examiner rationalized that there was no evidence of hearing loss or tinnitus attributable to military service during the period of active duty, even after being exposed to high intensity noise levels. The examiner further stated that there is medical evidence that gradual hearing changes can occur due to natural aging process. The Board finds the May 2016 VA examiner’s opinion to be highly probative to the question at hand. The examiner was an audiologist who possesses the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided adequate support for the determination that the Veteran’s tinnitus is not related to service. The conclusion was based on an evaluation of the Veteran and questioning, and a review of the Veteran’s record. The Board notes that the Veteran has provided no additional medical records showing treatment for tinnitus or any statements regarding suffering from tinnitus since discharge. The Board acknowledges the Veteran’s assertions that his tinnitus is due to in-service noise exposure. However, during the Veteran’s VA examination, he specifically stated that his tinnitus had been constant in his right ear for only a few years. The Veteran further could not indicate the circumstance of onset of tinnitus. The Board has also considered whether service connection for tinnitus is warranted on a presumptive basis, however, there is no evidence that the Veteran had tinnitus to a compensable degree within 1 year after discharge from service or that he experienced tinnitus continuously since discharge from service. Further, the Board again notes that the Veteran has not provided any statements regarding experiencing tinnitus since service. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert; Ortiz. Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel