Citation Nr: 18144847 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-31 317 DATE: October 25, 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 Veteran does not have hearing loss disability in the right ear for VA purposes. 2. The preponderance of the evidence is against finding that the Veteran has hearing loss disability in the left ear due to noise exposure in service. 3. The preponderance of the evidence is against finding that the Veteran has tinnitus due to noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to August 1967. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed timely notices of disagreement in October 2014 and January 2015. The VA issued a statement of the case in May 2016. The Veteran perfected his appeal by filing a VA Form 9 in June 2016 and elected not to appear before the Board in an optional hearing. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110; 38 C.F.R. 3.303(a). Establishing service connection requires (1) evidence of a presently existing disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2). However, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See 38 C.F.R. §3.159(a)(1). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F. 3d 1274, 1278 (2010). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. §3.102. While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzalez v. West, 218 F. 3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran contends that he suffers from bilateral hearing loss and tinnitus as a result of noise exposure while in service. Specifically, the Veteran claims that he worked on jet/recip aircraft during his tour of duty. He says he worked on flight lines in close proximity to aircraft noise, and this exposure has caused his hearing loss and tinnitus. The Veteran’s service treatment records are silent for any signs or symptoms of bilateral hearing loss or tinnitus. Specifically, the Veteran’s April 1964 enlistment examination, September 1966 air crew candidate examination, and July 1967 separation examination all indicate “normal” results for “ears-general.” Audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standards by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 ADD 15 10 10 10 5 The Veteran’s service treatment records include an April 1964 enlistment examination with an audiological examination that produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 5 10 LEFT 5 5 5 10 10 Because it is presumed the ASA standard was used in 1964, the Board has converted these pure tone thresholds consistent with the conversion chart above. Thus, in ISO-ANSI standards, the Veteran’s pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 15 15 LEFT 20 15 15 20 15 The Veteran was provided with another audiological evaluation in September 1966 which produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 -5 0 LEFT 0 0 0 0 0 Upon conversion to ISO-ANSI standards, the Veteran’s pure tone thresholds from the September 1966 audiological evaluation were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 5 5 LEFT 15 10 10 10 5 The Veteran was provided with a separation examination in July 1967 at which time auditory thresholds were recorded. It is unclear whether such thresholds were recorded using ASA units or ISO-ANSI units. For service audiological evaluations conducted between January 1, 1967 and December 31, 1970, VA protocol is to consider the data under both ASA and ISO-ANSI standards, whichever is more beneficial to the Veteran. The Veteran’s July 1967 separation report of medical examination revealed pure tone thresholds (ISO or ANSI units after conversion are in parentheses) as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -10 (0) -10 (0) -10 (-5) LEFT -5 (10) -10 (0) -10 (0) -10 (0) -10 (-5) The Veteran was provided with a VA audiological examination in in February 2014 which produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 10 25 LEFT 85 80 70 65 65 The Veteran’s speech recognition scores, using the Maryland CNC Test, were 100 percent in the right ear and 16 percent in the left ear. The VA examiner diagnosed the Veteran with sensorineural hearing loss bilaterally, noting that the Veteran may have hearing loss at a level that is not considered to be a disability for VA purposes. The examiner opined that the Veteran’s right and left ear hearing loss was not at least as likely as not caused by his service because the Veteran had normal hearing bilaterally upon military separation. Regarding the Veteran’s tinnitus, the Veteran reported constant tinnitus in both ears, describing it as a radio that cannot be tuned correctly. He claimed he noticed his tinnitus for the past 10-12 years. The VA examiner opined that the Veteran’s tinnitus is less likely than not associated with his hearing loss as he had normal hearing bilaterally upon military separation. The examiner also opined that the Veteran’s tinnitus is less likely than not due to military noise exposure because there were no complaints of tinnitus in the Veteran’s records. The examiner added that the Veteran claims he has only noticed his tinnitus for the past 10-12 years (35 years post separation). In his October 2014 notice of disagreement, the Veteran clarified that he started experiencing popping and hissing noises a few years after discharge but had not heard the term tinnitus until about 15 years ago. In a May 2016 VA opinion, the VA examiner explained that according to a landmark report, the Institute of Medicine stated that there was no scientific basis on which to conclude that hearing loss that appeared many years after noise exposure could be causally related to noise exposure if hearing was normal immediately after the exposure. The examiner added that this study remains the definitive consensus in this matter. She noted that noise-induced hearing loss will be found in the higher frequency range and not the lower frequencies. Typically, low frequency hearing loss is related more to middle ear issues. In a June 2016 VA opinion, the VA examiner considered the Veteran’s statements that he began experiencing tinnitus in the 1970s. The examiner noted that there were no complaints of tinnitus in the Veteran’s medical records. The Veteran indicated normal hearing bilaterally, indicating no acoustic damage. The examiner noted that the Veteran’s reports of tinnitus in the 1970s is still after military separation; he did not notice his tinnitus in the military or even within a year after discharge. The examiner added that even though the Veteran claims he was exposed to noise exposure in the military, there was no acoustic damage found. The possibilities of etiology of his tinnitus are numerous and even with a complete, detailed record of his medical and work history from birth, one would not likely be able to identify an etiology with absolute certainty. The examiner stated that it would be resorting to mere speculation to pick a single cause of his tinnitus when there are several indicators to aggravate it such as caffeine, nicotine, sodium, stress, anxiety, aspirin, anti-inflammatory medications, ototoxic meds, genetics, etc. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the 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. Based on the February 2014 VA examination and accompanying addendum opinions from May 2016 and June 2016 as discussed above, the Board finds that service connection is not warranted for bilateral hearing loss or tinnitus. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Shedden, Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, as just discussed, there is no clinical evidence of hearing loss in the right ear for VA purposes at any time during the pendency of this appeal. Additionally, although the Veteran has been diagnosed with hearing loss in the left ear and tinnitus, there is no probative persuasive evidence that shows that the left ear hearing loss or tinnitus occurred in service. The service treatment records show no significant pure tone threshold shifts while in service, and are absent of any complaints for tinnitus. The Board acknowledges the Veteran’s argument, through his representative, that the study mentioned by the VA examiner in the May 2016 opinion did not rule out the possibility of a nexus to in-service events. However, the VA examiner thoroughly reviewed the Veteran’s history and his medical records during and after service and provided a negative nexus opinion, stating that the Veteran’s hearing loss and tinnitus were not caused by his exposure to noise while in service, which is probative and supported by sufficient rationale. As such, the Board finds that the VA examiner’s opinion is highly probative, especially given the lack of any medical evidence to the contrary. The Board has also considered the lay evidence offered by the Veteran. This includes his statements as well as buddy statements submitted by the Veteran in January 2015 noting the Veteran’s decline in hearing and complaints of tinnitus. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the question of whether the Veteran’s current hearing loss and tinnitus is related to his military service cannot be determined by mere observation alone. The Board finds that determining whether the Veteran’s noise exposure in the military caused his left ear hearing loss and tinnitus is not within the realm of knowledge of a non-expert. As the evidence does not show that the Veteran or his friends that submitted lay statements have expertise in medical matters, the Board concludes that any nexus opinion that his hearing loss or tinnitus related to service is not competent evidence and therefore is not probative of whether his current left ear hearing loss and tinnitus was caused by his active duty service. (Continued on the next page)   Accordingly, service connection for bilateral hearing loss and tinnitus must be denied. The preponderance of the evidence is against the claims and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel