Citation Nr: 18143063 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-28 373 DATE: October 17, 2018 ORDER The claim of entitlement to service connection for bilateral hearing loss is denied. The claim of entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has bilateral hearing loss due to a disease or injury in service, to include due to reported noise exposure. 2. Resolving reasonable doubt in favor of the Veteran, his tinnitus was incurred in active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from April 1969 to January 1971. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. Hearing loss and tinnitus are “chronic diseases” listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to this service connection claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. The claim of entitlement to service connection for bilateral hearing loss The Veteran contends that his present diagnosis of bilateral hearing loss is etiologically related to his active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and evidence shows that he was exposed to significant noise, including from various weapons and tanks, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s March 1969 entrance examination authorized audiological evaluation reflects two audiological readings. The first reflects pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 X 10 LEFT 10 0 10 X 10 The second audiological reading reflects pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 X 0 LEFT 0 0 0 X 0 Speech audiometry was not conducted in this examination. On the authorized audiological examination associated with the Veteran’s January 1971 separation examination pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 X 0 LEFT 0 0 0 X 0 Speech recognition was not conducted in this examination. The Veteran’s service treatment records do not otherwise contain complaints regarding his hearing. VA treatment records from October 2014 reflect that the Veteran was fitted for hearing aids. At the time of the fitting, the Veteran reported working part-time in construction. He was advised to refrain from wearing the hearing aids around loud noises, and he should be wearing hearing protection. In April 2015, the Veteran underwent a VA examination to assess the nature and etiology of his bilateral hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 60 85 85 LEFT 30 25 50 90 80 Speech audiometry revealed speech recognition ability of 88 percent bilaterally. The Veteran was diagnosed with bilateral sensorineural hearing loss. He reported having a hard time understanding and hearing women, both in court and in meetings. He also endorsed difficulty hearing soft-spoken people. The examiner concluded that the Veteran’s bilateral hearing loss was not at least as likely as not related to his active duty service. The examiner relied on the Veteran’s entrance and separation examinations that reflected no significant hearing threshold shift in either ear indicative of traumatic damage to his hearing. The examiner also noted the Veteran’s reports of exposure to noise through use of a range of weapons and work around tanks. In March 2016, the Veteran submitted a statement regarding his ongoing hearing loss in conjunction with his Notice of Disagreement. The Veteran reported being unable to recall a formal hearing test during his induction examination. He reported that his hearing became a problem “as the workplace changed and more and more wom[e]n became involved in the legal profession and the work place [sic] in general.” The Veteran stated that his “hearing loss is in specific ranges that women’s voices tend to fall in making it much more difficult to communicate at work even with the older style hearing aids.” This difficulty purportedly caused him to leave the fields of security, risk management, and forensic accounting. The Veteran indicated that the examiner who performed his hearing examination reported to him that his hearing loss was probably associated with trauma. In the Veteran’s June 2016 statement, he continued to report being unable to recall a formal hearing evaluation both at his entrance examination as well as his separation. He stated that male medical personnel conducted a “production line” examination in which they spoke to the recruits. The Veteran believed that, as his hearing loss is in a range of sound associated with female voices, that his hearing loss could not accurately be tested by male personnel upon his separation. The Veteran also reported that, while he worked on tanks in service, the noise was so loud that he needed to communicate with others by handwritten notes. He stated, however, that his hearing returned after he stopped working on the tanks. The Board finds that the preponderance of the evidence of record weighs against the establishment of a nexus between the Veteran’s bilateral hearing loss and active duty service. The Veteran’s separation examination reported normal hearing at discharge, and no significant threshold shift was found between his entrance and separation examinations that would indicate damage to his hearing. While the Veteran may not recall the audiological evaluations, such results are specifically noted in his service treatment records, and the remaining evidence of record does not undermine those findings. Furthermore, the April 2015 VA examination determined that his hearing loss was less likely than not related to active duty service, despite the examiner’s purported verbal assertion that his hearing loss was due to trauma. The examiner relied on the entrance and separation audiological findings, and considered the Veteran’s lay reports of symptomatology associated with his hearing loss. Finally, there is no indication from the record that the Veteran experienced symptoms of hearing loss within one year of discharge. The Veteran reported that he noticed trouble with his hearing in his workplace once women started to enter the field in greater numbers, but no more specific timing has been provided. The Veteran also noted that his hearing trouble after working in tanks resolved once he stopped working in the tanks. While he asserts that his separation examination could not have detected his “type” of hearing loss, i.e. in the range of women’s voices, the remainder of the Veteran’s personnel and service treatment records do not support his contention that he was not provided with an audiological evaluation upon discharge. While the Veteran believes that his current hearing loss is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of hearing loss are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his hearing loss is not competent medical evidence. Moreover, the Veteran has estimated that his hearing became a problem later in his career once women started to enter the workplace. He does not contend that he experienced symptoms prior to discharge that continued to present day. Thus, the Veteran’s own opinion regarding the etiology of his current hearing loss is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. Given the time between active duty service and the diagnosis of bilateral hearing loss, including as according to the Veteran’s own lay reports, as well as the probative opinion of the VA examiner, the Board finds that the preponderance of the evidence of record weighs against service connection for bilateral hearing loss. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for bilateral hearing loss must be denied. 2. The claim of entitlement to service connection for tinnitus The Veteran contends that his tinnitus is etiologically related to active duty service. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran’s tinnitus began during active duty service. The Board incorporates by reference the previous discussion of the Veteran’s service treatment records, as well as his entrance and separation examinations. In the Veteran’s April 2015 VA examination, he reported that his tinnitus began during active duty service. He stated that his tinnitus sounded like “chirping noises” in both ears. His tinnitus was a distraction, particularly affecting his ability to concentrate in quiet environments. The examiner concluded, however, that his tinnitus was less likely than not a result of active duty service, to include noise exposure. The examiner again compared his entrance and separation examinations to conclude that no threshold shift occurred in either ear. The Veteran reported in his June 2016 statement that he did, in fact, complain of a noise akin to “birds chirping” during his separation examination; however, at the time, tinnitus was only recognized as the sound of bells ringing. As such, he reported that the examiner did not diagnose tinnitus during his January 2017 separation examination. The evidence of record reflects consistent reports by the Veteran that his tinnitus began during active duty service, and continued after discharge. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. The Board concludes that the Veteran’s tinnitus was incurred in active duty service. The Veteran has consistently reported a chirping noise in his ears that began during active duty. The Veteran is competent to testify as to onset of a condition such a tinnitus, and did so repeatedly through the record. As such, the Board may place more probative weight on the Veteran’s statement regarding onset than the opinion of the VA examiner who did not address his lay statements regarding onset. As the evidence of record stands in relative equipoise, the benefit of the doubt is resolved in favor of the Veteran. Service connection for tinnitus is warranted. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel