Citation Nr: 18145888 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-27 764 DATE: October 30, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. Bilateral hearing loss disability did not manifest in service or within one year. The disability is not otherwise related to service. 2. Tinnitus was not manifest during service or within one year of separation. Tinnitus is not attributable to service. 3. A right shoulder disorder was not manifest in service and is not attributable to service. 4. A lumbar spine disorder was not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. A right shoulder disorder was not incurred in or aggravated by service. 38 U.S.C. § 1110. 4. A lumbar spine disorder was not incurred in or aggravated by service. 38 U.S.C. § 1110. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to February 1973. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also be established for organic diseases of the nervous system if manifest to a compensable degree within one year. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” 38 C.F.R. § 3.303(b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran seeks service connection for his bilateral hearing loss disability. The issue 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 service. The Board concludes that, while the Veteran has bilateral hearing loss disability, and noise exposure is conceded, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss began during service or is otherwise related to service. 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 served as an aviation maintenance administrationman while in Vietnam. Exposure to noise is therefore conceded. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) 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, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Prior to January 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since then, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). However, for the period between January 1, 1967 and December 31, 1970, the Board will consider both the ASA and ISO-ANSI standards, as VA has determined that Service Departments may not have been consistent with the transition during this period. Therefore, in order to facilitate data comparison, the results of the Veteran’s December 1970 enlistment examination have been considered under both standards. For ISO conversion, the Board added (+15) at 500 Hertz; (+10) at 1000 Hertz; (+10) at 2000 Hertz; (+10) at 3000 Hertz; and (+5) at 4000 Hertz. Service treatment records contain no complaints of hearing loss. The Veteran denied hearing loss at separation. At entrance into active duty, the pure tone thresholds, in decibels with adjustment, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) At separation, the Veteran’s audiological examination indicated that ISO standards were used. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 0 0 LEFT 15 5 5 5 0 Neither examination shows hearing loss. A VA audiological examination in September 2013 confirmed that the Veteran currently has bilateral hearing loss disability. The Veteran’s results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 55 55 LEFT 15 15 20 55 55 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. The examiner opined that the Veteran’s bilateral hearing loss is less likely than not related to service because there were no significant threshold shifts noted between the Veteran’s entrance and separation audiological examinations. The Veteran’s wife submitted a statement attesting that the Veteran has had difficulty hearing since she met him in 1975. She stated that he has always needed the volume on the television turned up and that he has needed the room to be quiet when on the phone. While the Veteran believes his bilateral hearing loss disability is related to his noise exposure in service, he is not competent to provide a nexus opinion in this case. Consequently, the Board gives more probative weight to the opinion of the VA examiner. Further, while the Veteran’s wife is competent to report her observations regarding her husband’s hearing loss disability, her statements that he has had difficulty hearing since they met are insufficient to establish that the Veteran’s hearing loss disability was manifest to a compensable degree within the one-year presumptive period as she states that she met him in 1975, over a year after his separation from active duty. The Board concludes that, while the Veteran has bilateral hearing loss disability. it did not manifest in service or to a compensable degree within one year, and continuity of symptomatology is not established. He did not have characteristic manifestations sufficient to identify the disease entity since testing was normal at that time. Here, neither hearing loss nor hearing loss disability was noted during service or within one year of separation, and the separation examination was normal. There is no credible evidence of hearing loss disability in service or within the presumptive period, and there is no competent evidence linking the remote onset to service, to include noise exposure. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. The Veteran has reported that he currently has tinnitus, which he is competent to report. Jandreau v. Nicholson, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). On a March 2013 lay statement, the Veteran stated that his tinnitus began in service. However, the Veteran’s statements regarding the onset of his tinnitus have been inconsistent. At separation, he reported no ear problems and no hearing loss. At his September 2013 VA examination, he reported that his tinnitus “may have” begun in service. In a lay statement submitted by the Veteran’s wife, she stated that he has complained of tinnitus for “the past number of years,” but that his hearing loss has been evident since they met in 1975. As there are conflicting statements as to the onset of tinnitus, the Board does not find them credible. The September 2013 VA examiner opined that the Veteran’s tinnitus is less likely than not related to service. The stated rationale was that the Veteran’s hearing did not undergo any threshold shifts in service, indicating that the Veteran’s current hearing loss disability and tinnitus are both unrelated to his noise exposure in service. The evidence is against a finding that the tinnitus manifested in service or to a compensable degree within one year of separation. Service treatment records do not reflect any complaints of tinnitus, and the Veteran’s audiological examination at separation examination was normal. As noted above, the statements by the Veteran and his wife as to onset of the tinnitus are inconsistent. The inconsistent statements regarding onset render any statement that tinnitus manifested in service not credible and thus deserving of little probative weight. Here, tinnitus was not noted during service or within one year of separation and he did not have characteristic manifestations of the disease process during that time frame. 3. Entitlement to service connection for a right shoulder disability 4. Entitlement to service connection for a lumbar spine disability The Veteran has appealed the denial of service connection for a right shoulder disorder and a lumbar spine disorder. In essence, the lay evidence is to the effect that he had pathology during service and that he has had problems since service. However, the service records are silent as to complaints, findings or manifestations of lumbar pathology or right shoulder pathology. In fact, when examined prior to separation from service, he was examined and such examination established that the spine, musculoskeletal system and upper extremities were normal. Such evidence is inconsistent with on-going symptoms. Clearly, he did not have characteristic manifestations of any disease process during service. In addition, there is no competent evidence of underlying pathology within one year of separation or in proximity to separation from service. Here, there is remote lay evidence of in-service onset and continuing symptoms since service. However, such remote lay evidence, in support of a claim for monetary benefits, is far less probative and less credible than the normal service records and the absence of evidence in proximity to service. The preponderance of the evidence is against the claim and there is no doubt to be resolved. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel