Citation Nr: 18145474 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-30 418 DATE: October 29, 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 preponderance of the evidence is against finding that the Veteran has bilateral hearing loss due to a disease or injury in service, to include in-service noise exposure. 2. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, to include in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1967 to January 1970. This case is on appeal before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks service connection for bilateral hearing loss and tinnitus, both of which he asserts are related to active service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for certain chronic diseases, such as organic diseases of the nervous system, which include both sensorineural hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, 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 claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran alleges that both his bilateral hearing loss and tinnitus are related to events he experienced in service. However, the evidence of record fails to establish a nexus between either of these conditions and active service. Thus, both appeals are denied. I. Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss, which he claims was caused by noise exposure during service. He asserts that his hearing was good prior to entering the military. However, after three years of serving as an armored crewman and being exposed to noise from large caliber machine guns, the Veteran realized that he did not hear as well as he did before. The Veteran states that he was issued hard rubber earplugs, but indicates that these did not entirely close off his ear canal. The Veteran alleges that his hearing has gotten worse since separation, and claims that numerous audiologists have suspected that traumatic exposure to high intensity weapons discharge during service is the underlying cause of his hearing loss. See June 2016 Form 9. Impaired hearing will be considered to be a disability under the laws administered by the VA 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 Hz 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 Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that 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. Id. at 159. The Veteran’s service treatment records include an audiogram with the January 1967 enlistment examination report, which shows the following puretone threshold results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 0 LEFT 0 0 0 0 0 The Veteran underwent audiological testing as part of his October 1969 separation examination. Puretone testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 15 0 LEFT 0 0 10 5 These results do not indicate a level of hearing loss in either ear sufficient to establish a disability under VA regulations at any time during service. Similarly, the rest of the October 1969 separation examination report makes no mention of any hearing difficulties. The record contains no further indication of hearing difficulties or records of treatment until August 2003. That month, Dr. D.R., a private physician, conducted an audiological examination of the Veteran. Puretone testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 15 35 25 25 LEFT 5 15 25 30 30 This testing revealed significant bilateral hearing loss; however, at this time, the Veteran’s hearing loss did not meet the requirements of a hearing loss disability under VA regulations. Nonetheless, the Veteran’s bilateral hearing continued to deteriorate in the following years, as shown by numerous subsequent audiograms. The Veteran was afforded a VA audiological examination in September 2015. Puretone testing results from that examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 20 40 35 65 LEFT 15 15 30 50 45 The VA examiner also found that the Veteran’s speech recognition ability (Maryland CNC word list) was 100 percent in the right ear and 96 percent in the left. The examiner reviewed the Veteran’s statements and claims file, conceding noise exposure during service. The examiner determined that the Veteran has bilateral sensorineural hearing loss, and that this hearing loss meets the requirements of a VA hearing loss disability in both ears. The examiner opined that the Veteran’s bilateral hearing loss is less likely than not the result of his military service. The rationale for this opinion was that “[t]he Veteran was exposed to some loud noise during his active military duty. However, the medical records reviewed indicated no significant shift in hearing threshold from the time of his enlistment exam to the time of his retirement exam. Thus, it is less than likely that his hearing loss is due to noise trauma during his military service.” After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran has a current hearing loss disability resulting from his military service. The Board notes that the opinion provided by the September 2015 VA examiner is the only medical opinion addressing the origin of the Veteran’s hearing loss. The VA examiner had the benefit of examining the Veteran and the claims file, provided a clear basis for his medical opinion, and made the most recent evaluation of record. Although the VA examiner confirmed the existence of a hearing loss disability in both ears, he found no relationship between the Veteran’s current complaints and events experienced in service. The Board thus affords this opinion the greatest probative weight, and adopts the VA examiner’s conclusion that the Veteran has not exhibited chronic hearing loss since service. In assessing this claim, the Board also considered the Veteran’s assertions that his hearing loss is related to noise exposure during service. These lay statements have evidentiary value inasmuch as the Veteran is competent to report observable symptomatology, which includes difficulty hearing. Jandreau v. Nicholson, 492 F.3d 1372 (2007). However, on the issue of whether the Veteran had chronic hearing loss in service or in the decades following service, as defined under 38 C.F.R. § 3.385, lay assertions are not as credible as medical evidence addressing the issue. The development of a hearing loss disability concerns internal pathology beyond the capacity of a lay witness to observe. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Hearing loss under VA guidelines is determined by complex and technical audiological testing, not by subjective complaints. Therefore, the Veteran’s assertions are not medically significant with regard to whether an actual disability existed during or following service. Indeed, the lay evidence is not as persuasive as the medical evidence before the Board, which indicates a much later onset of chronic disability. The medical evidence in the claims file strongly contradicts the Veteran’s statements, showing that he did not develop a hearing loss disability until decades after service. As such, the preponderance of the evidence is against the Veteran’s lay assertions indicating an onset of hearing loss during service, or in the year following service. The preponderance of the evidence therefore does not show that the Veteran’s hearing loss disability began during active service or manifested to a compensable degree within the prescribed period after separation. It also cannot be shown that it is the result of in-service noise exposure or otherwise related to service. As such, service connection for bilateral hearing loss is denied. II. Tinnitus The Veteran seeks service connection for tinnitus, which he claims was caused by noise exposure during active service. The Veteran served as an armored crewman, and reports that his ears would ring after live-fire exercises. He was issued hard rubber earplugs, but alleges that these did not completely close off his ear canal. The Veteran claims that he never had any ringing in his ears prior to service, and indicates that he first noticed his tinnitus in 2003 when he was sitting in his backyard at night. See September 2015 VA audiological examination report; see also June 2016 Form 9. For chronic diseases like tinnitus, the second and third elements of the service connection analysis may be established by showing continuity of symptomatology. 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1331. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” See Barr, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Veteran’s service treatment records are devoid of any indications of tinnitus or other hearing abnormalities. Indeed, his October 1969 separation examination does not reflect complaints of tinnitus or suggest any other audiological abnormalities. There is no further indication of tinnitus in the record until August 2007, when the Veteran told his primary care provider that he had been experiencing tinnitus for the previous 4 years. The Veteran was afforded a VA audiological examination in September 2015. The examiner noted the Veteran’s complaint that his tinnitus exacerbates his hearing difficulties, and conceded noise exposure during service. Nonetheless, the examiner opined that the Veteran’s tinnitus is at least as likely as not a symptom of his bilateral hearing loss, given that tinnitus is known to be a symptom associated with hearing loss. For the reasons explained in the previous section, the Veteran’s bilateral hearing loss is less likely than not a result of his in-service noise exposure. As such, the same conclusion can be made about his tinnitus. After careful consideration of the claims file, the Board finds the weight of the evidence is against a finding of service connection for the Veteran’s tinnitus. The Veteran never reported tinnitus while in service. Indeed, the October 1969 separation examination reflects no complaints of tinnitus. Furthermore, the Veteran did not report tinnitus until August 2007, almost four decades after separation. The Board next finds that the preponderance of the evidence demonstrates that symptoms of tinnitus have not been continuous since separation from active service in January 1970. As noted above, the October 1969 separation examination report is negative for any report or finding of tinnitus. The record also demonstrates that the Veteran neither complained of nor sought treatment for tinnitus between his separation from service in January 1970 and the August 2007 appointment with his primary care provider. The absence of post-service complaints, findings, diagnosis, or treatment for the claimed disorder for almost four decades after separation is one factor that tends to weigh against a finding of chronic symptoms of tinnitus after service separation. See Buchanan, 451 F.3d 1331 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board thus finds that the preponderance of the evidence demonstrates that the Veteran’s tinnitus did not manifest to a compensable degree within one year of service separation; indeed, the evidence does not demonstrate a diagnosis or complaints of tinnitus until August 2007. For these reasons, the Board finds that tinnitus did not manifest to a compensable degree within one year of service separation; as such, the presumptive provisions for tinnitus are not applicable in this case. 38 C.F.R. §§ 3.307(a)(3) and 3.309(a). While the Veteran asserted in June 2016 that he has had tinnitus since service, the Board finds this claim is outweighed by the other, more contemporaneous lay and medical evidence of record, both in service and after service, and therefore is not credible. Charles, 16 Vet. App. 370. Indeed, the Veteran did not report tinnitus at any time during service or during his separation examination in October 1969, and did not complain of tinnitus until August 2007. Therefore, the Board does not find that the evidence sufficiently supports chronic tinnitus symptomatology since service, so as to warrant a finding of a nexus between the current disorder and active service. The Board acknowledges the Veteran’s statements that he has experienced tinnitus since service, as well as his belief that his current tinnitus is related to the noise exposure he experienced during active service. The Veteran is competent to provide evidence regarding matters that can be perceived by the senses, and he is competent in some instances to provide an opinion regarding etiology. See Jandreau, 492 F.3d 1372; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). For the reasons discussed below, however, the Board finds that the opinion provided by the September 2015 VA examiner is more probative than the Veteran’s non-credible lay assertions. The examiner had expertise, education, and training that the Veteran is not shown to have. As such, that opinion is afforded more weight. The September 2015 VA examiner’s opinion was based on an accurate factual premise of the Veteran’s history. The examiner reviewed the claims file and specifically based his opinion on the documented evidence therein. Also, the examiner provided clear and persuasive rationale for the opinion, based on documented audiological records during the Veteran’s period of service. Therefore, the Board finds that the September 2015 VA examination report provides competent, credible, and probative evidence which shows that the Veteran’s current tinnitus disability is not related to service, and adopts its conclusions. The preponderance of the evidence therefore does not show that the Veteran’s tinnitus began during service or manifested to a compensable degree within the prescribed period after separation. It also cannot be shown that it is the result of in-service noise exposure or otherwise related to service. As such, service connection for tinnitus is denied. III. Conclusion In conclusion, the Board finds that the evidence of record does not establish a nexus between the Veteran’s bilateral hearing loss and active service. Similarly, the weight of the evidence is against the finding that his tinnitus is related to in-service noise exposure. Although the Board acknowledges the Veteran’s statements that he has had hearing loss and tinnitus since service, the majority of the evidence is inconsistent with these assertions. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claims for service connection for bilateral hearing loss and tinnitus are denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel