Citation Nr: 18142696 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 14-39 854 DATE: October 17, 2018 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus, to include as secondary to hearing loss, is denied. FINDINGS OF FACT 1. The Veteran does not currently have a bilateral hearing loss disability. 2. The Veteran’s tinnitus did not have its onset during active service and is not related to any incident of service to include acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus are not satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge in June 2018. Service Connection Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical “nexus” requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). Service connection will be established on a secondary basis for current disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439, 448 (1995). For the VA-defined chronic diseases listed in 38 C.F.R. § 3.309(a), if the chronic disease manifested in service, then subsequent manifestations of the same chronic disease at any date after service – no matter how remote – will be entitled to service connection without having to satisfy the medical nexus requirement, unless clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. If the evidence is not sufficient to establish chronicity of the disease at the time of service, then a continuity of symptoms after service must be shown to grant service connection under this relaxed evidentiary provision. Id.; Walker, 708 F.3d at 1338-39 (observing that 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 a] presumptive period”). In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for VA-defined chronic diseases, including sensorineural hearing loss and tinnitus as organic diseases of the nervous system, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for hearing loss The Veteran asserts that he has a hearing loss disability as a result of in-service noise exposure. However, the preponderance of the evidence shows that the Veteran does not have a current hearing loss disability, for the reasons that follow. Impaired hearing qualifies as a disability for VA compensation purposes when the pure tone auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the pure tone auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Hensley, 5 Vet. App. at 159. The Veteran was afforded a VA C&P examination in October 2011. His puretone thresholds and speech recognition scores are listed below. 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Maryland CNC Right 10 15 10 15 35 100 Left 5 10 10 10 5 96 The Veteran submitted a copy of a private audiological evaluation from Ear, Nose and Throat (ENT) Surgeons of Western New England dated in May 2014. His puretone thresholds and speech recognition scores are listed below. 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz SD Right 20 25 20 20 30 100 Left 15 15 20 20 20 100 The Veteran was afforded another VA C&P examination in October 2017. His puretone thresholds and speech recognition scores are listed below. 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Maryland CNC Right 10 5 20 15 30 96 Left 5 5 10 15 20 100 Here, the October 2011 and October 2017 VA examination reports show that the Veteran’s puretone thresholds and speech discrimination scores do not meet the criteria for a current hearing loss disability as defined by VA regulation. See 38 C.F.R. § 3.385. Further, although it does not appear that the private May 2014 audiological evaluation was conducted in accordance with 38 C.F.R. § 4.85(a), it too reflects results that do not meet the criteria for a current hearing loss disability in accordance with 38 C.F.R. § 3.385. Consequently, in the absence of a current disability, the criteria for service connection are not satisfied. See id.; Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (upholding VA’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of present disability there can be no valid claim”) (internal citation omitted). While the Veteran is competent to report subjective symptoms of hearing loss, he is not competent to determine whether it is disabling for VA compensation purposes, as this is not a matter of lay observation but rather can only be established through objective clinical testing - namely, by way of an audiogram and Maryland CNC speech discrimination test. See 38 C.F.R. § 3.385; see Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer). Moreover, the Board accords more weight to the audiological examination reports than to the Veteran's lay statements in support of his claim. In sum, the probative evidence of record shows that the Veteran does not have a current hearing loss disability in accordance with VA standards. As such, service connection for bilateral hearing loss must be denied. Because the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran’s service treatment records do not mention any treatment for or complaints of tinnitus. On separation examination in May 1984, he denied experiencing any ear trouble. The Veteran was afforded VA audiological examinations in October 2011 and October 2017, at which time he indicated that his tinnitus symptoms began in approximately 2003. Both VA examiners determined that the Veteran’s tinnitus was a symptom associated with his hearing loss and not due to military noise exposure. See October 2011 VA C&P Examination Report; October 2017 VA C&P Examination Report. The October 2011 VA examiner explained that the late onset of tinnitus was most likely related to hearing loss and not related to military noise exposure. The October 2017 VA examiner acknowledged the Veteran’s in-service noise exposure from working as a heavy truck operator, but explained that given the Veteran’s normal hearing at separation and the absence of threshold shifts at that time, it was less likely than not that his tinnitus was a result of his military service. At his VA examinations in October 2011 and October 2017 and during a private ear, nose and throat (ENT) evaluation in May 2014, the Veteran reported that his tinnitus started in the early 2000s, more than 15 years after his separation from service. See October 2011 and October 2017 VA C&P Examination Reports (reflecting the Veteran’s report of an onset of tinnitus in approximately 2003); and May 2014 private ENT evaluation (noting the Veteran’s report of having tinnitus for 15 years). However, during a February 14, 2013 VA audiology consult he stated that he had tinnitus since he was in his mid-20s, so since the 1980s. And during his hearing before the Board in June 2018, he testified that he noticed ringing in his ears shortly before he was separated from service. The preponderance of the evidence weighs against a relationship between the Veteran's tinnitus and his active service, including his in-service noise exposure. The Board finds it credible based on the circumstances of his service that the Veteran had noise exposure. See 38 U.S.C. § 1154(a). However, the Board does not find it credible that tinnitus manifested during service. As noted above, the Veteran has offered conflicting statements concerning the date of onset of his tinnitus, indicating both that it started during service and that it started in the 2000s, more than 15 years after his separation from service. On his separation examination in May 1984, he denied experiencing any ear trouble while endorsing a history of other medical conditions (e.g., eye trouble, foot trouble, etc.). This contemporaneous evidence outweighs and contradicts the Veteran's later statements in 2013 and 2018 that his tinnitus manifested during service and/or has been present ever since service. Accordingly, the Board does not find it credible that the Veteran's tinnitus manifested during service or has been present ever since service. Rather, in light of the May 1984 separation examination report and the Veteran’s conflicting statements concerning the onset of his symptoms of tinnitus, the Board finds that the Veteran's tinnitus did not first manifest until several years after service separation. The VA examiners’ opinions finding against a relationship to service carry a lot of evidentiary weight in the Board's determination, as they represent the informed conclusions of objective medical professionals, and because the examiners provided specific explanations in support of the conclusions reached. The Board has considered the Veteran's opinion that his tinnitus is related to his in-service noise exposure, but finds that it lacks probative value and is outweighed by the VA medical opinions finding against a link to service. In this regard, the Board may not categorically reject lay testimony on medical issues or categorically find that medical evidence is required to support the claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011). Rather, the Board must determine on a case-by-case basis whether lay testimony is competent with respect to the issue in question, or whether medical evidence is required. Id.; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson, 581 F.3d at 1316; Jandreau, 492 F. 3d at 1376-77; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. Id; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In this case, while the Veteran is competent to state that his tinnitus has been present since service, the Board does not find this history to be credible, as explained above. Thus, to the extent his opinion is based on that premise, it lacks probative value. Whether in-service noise exposure may have caused the development of tinnitus years later cannot be made based on lay observation alone given the long amount of time that elapsed, and because there is no apparent cause-and-effect relationship that can be readily observed through the senses and without the aid of medical knowledge. Accordingly, because he is a lay person in the field of medicine, the Veteran's unsupported opinion is not competent evidence on this medically complex issue. See id. Therefore, it lacks probative value. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In any event, the Veteran's lay opinion is outweighed by the VA medical opinions, which were rendered by medical professionals who provided specific explanations for the conclusions reached. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). Because the Board finds that the Veteran's tinnitus did not manifest during service or until several years following service separation, service connection is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis for tinnitus that manifests to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). In sum, the probative evidence of record establishes that the Veteran’s tinnitus had its onset several years after service and is not related to his in-service noise exposure. The preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for tinnitus on a direct/presumptive basis is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. (Continued on the next page)   Lastly, while the VA examiners linked the Veteran’s tinnitus to his hearing loss, the Veteran is not currently service connected for hearing loss. Therefore, service connection cannot be granted on secondary basis as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel