Citation Nr: 18147100 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-48 459 DATE: November 2, 2018 ORDER Entitlement to service connection for bilateral hearing loss (BLHL) is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Hearing loss was not manifest during active service, was not manifest within one year of service; and, the preponderance of the evidence fails to establish that it is etiologically related to service. 2. Tinnitus was not manifest during active service, was not manifest within one year of service; and, the preponderance of the evidence fails to establish that it is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Service Connection The Veteran is seeking entitlement to service connection for bilateral hearing loss (BLHL) and tinnitus due to acoustic trauma he experienced from his duty within the proximity of Naval aircraft engines. See i.e. September 2016 VA Form 9 (“I was also around aircraft noise a lot more than what VA is currently reporting and we were either given little or no hearing protection.”) Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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, or 4000 Hertz 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. In addition, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the 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, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. "[W]hen audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Appellant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for bilateral hearing loss (BLHL) and tinnitus The Board finds that the most probative evidence of record demonstrates that entitlement to service connection for BLHL and tinnitus are not warranted. The foregoing analysis will focus entirely upon the third element under Shedden, a causal nexus, as the first two elements have clearly been demonstrated by the record. Specifically, the Veteran has current BLHL and tinnitus disabilities, and his service records readily identify exposure to acoustic trauma during the course of his duties as a Naval aviation administrator. See July 2015 VA Audiology note (“comprehensive audiometry threshold evaluation revealed a symmetrical hearing loss…reported bilateral constant subjective tinnitus which began many years ago and has recently become more noticeable”); January 1967 Administrative Remarks (“received 9.0 hours of training/operational flights during the period 1Jan66 to 31Dec66”); June 1967 Report of Enlisted Performance (“Flight crew board member”); March 1969 DD214. The Veteran does not allege, and there is no documentary evidence that hearing loss or tinnitus was manifested to a compensable degree in the first post-service year. Audiological examinations were conducted upon entrance into service in 1965 and upon discharge in 1969, with all findings reflecting normal hearing under VA standards and no significant threshold shift. His pre-induction March 1965 examination revealed thresholds as follows: in the right and left ears: 00 (500 Hz.), 00 (1000 Hz.), 00 (2000 Hz.), 00 (4000 Hz.): His March 1969 separation examination revealed a normal clinical evaluation of the ears. Audiology testing revealed thresholds as follows: in the right ear: 05 (500 Hz.), 05 (1000 Hz.), 05 (2000 Hz.), 05 (4000 Hz.), and in the left ear 05 (500 Hz.), 00 (1000 Hz.), 05 (2000 Hz.), 05 (3000 Hz.), and 10 (4000 Hz.). VA audiology examination in August 2016 included diagnoses of sensorineural hearing loss in the right and left ear and tinnitus. The examiner found the Veteran's hearing loss and tinnitus was not likely caused by or a result of an event in military service. As rationale it was noted his separation examination demonstrated hearing within normal limits with no significant shift in hearing thresholds between pre-induction and separation examinations. The first evidence of hearing loss was noted to have been provided over 40 years after his separation from active service. Regarding tinnitus, the examiner noted that the Veteran reported the condition “likely began 10-15 years ago.” Based upon the evidence of record, the Board finds that hearing loss and tinnitus were not manifest during active service or within a year of discharge. The preponderance of the evidence also fails to establish that they are etiologically related to service. There is no competent evidence of any symptoms or treatment attributable to such disabilities for more than 40 years after the Veteran's discharge from active service. The August 2016 VA opinions are persuasive and based upon adequate rationale. The examiner is shown to have reviewed of the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration has also been given to the Veteran's personal assertion that he has a hearing loss and tinnitus disabilities related to active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hearing loss is a disability that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms (such as diminished hearing), but there is no indication that he is competent to etiologically link any current diagnosis to service. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. The Board acknowledges that tinnitus is a disability that can be identified/diagnosed on a lay basis. However, in the context of the present appeal, the Veteran specifically denied the presence of tinnitus until 10 to 15 years before his examination, approximately 25 to 30 years after service discharge. It is also noted that the Veteran has not stated that his tinnitus had its onset in service or that it has existed on a continuous basis since service. He has only stated that his tinnitus is related to service without any explanation. He does not possess the competence to render such an opinion. In conclusion, the Board finds that service connection for hearing loss and tinnitus is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 136 (Fed. Cir. 2001). The preponderance of the evidence is against these claims. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. COLICELLI