Citation Nr: 18149302 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-45 193 DATE: November 9, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established loss; and the disability is not otherwise etiologically related to in-service noise exposure. 2. Tinnitus had its onset in service and has persisted since service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. Service Connection The Veteran contends that he has bilateral hearing loss and tinnitus due to in-service noise exposure aboard an aircraft carrier. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. For chronic diseases, such as sensorineural hearing loss and tinnitus, identified as such in 38 C.F.R. § 3.309(a), the disability is considered to have been incurred in or aggravated in service if manifested to a compensable degree during the period of service or within one year following service. 38 U.S.C. § 1110; 38 C.F.R. § 3.307(a)(3). For chronic diseases not manifested to a compensable degree during service or within one year following service, service connection can still be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). VA has conceded noise exposure during military service. Also, the record shows that the Veteran has tinnitus and a hearing loss disability as defined by VA under 38 C.F.R. § 3.385. 1. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that he has hearing loss related to noise exposure in service. The Board concludes that the preponderance of the evidence is against service connection for bilateral hearing loss disability. The evidence does not tend to show that hearing loss disability has its onset in service or within the presumptive period following service discharge; or the disability is otherwise related to service, to include noise exposure. 38 C.F.R. §§ 3.307, 3.303(b); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records (STRs) reflect no complaints or findings for hearing loss. His October 1971 service separation examination reflects that hearing is within normal limits. See Hensley v. Brown, 5 Vet. App. 155, 159 (the threshold for normal is from 0 to 20 decibels). Hearing loss is first documented decades years after active service and the presumptive period. While a March 2015 VA examination report the presence of hearing loss disability for VA purposes., the examiner opined that it is less likely than not that caused by in-service noise exposure and more likely than not caused by the post-service occupational and recreational noise exposure based on examination and the Veteran’s medical history. The Board has considered a statement from the Veteran’s his wife. She reported that she and the Veteran had been married 40 years and met shortly after he was discharged from the Navy. She said she noticed some hearing loss when they first met. She said that she would wonder if he was ignoring her when he said that she had never said something. While the Veteran is competent to report his symptoms and his wife is competent to report her observations, this evidence does not establish that the Veteran had a hearing loss in service or to a compensable degree in the initial post separation year because hearing loss disability for VA purposes required medial testing in accordance VA law. The Board finds the Veteran’s assertion to the VA examiner reviewing this claim that he had noticed a hearing loss while in service less credible than the contravening statements to the private provider in February 2013, offered for the purpose of obtaining treatment. Before being tested and diagnosed with a hearing loss, the Veteran told the treatment provider that he had no history of ear problems. When asked about hearing conversations, he answered that he rarely or never misunderstands words. The Board finds the Veteran’s wife’s memory of 40 years ago less probative than the objective evidence from the VA examination indicating that there was no hearing loss for her to take note of. The VA examiner, having reviewed the results of both the induction and separation exams, noted that there was no worsening in threshold shifts from induction to separation greater than normal measurement variability. While a February 2013 private treatment note shows hearing loss consistent with noise exposure, the finding was not linked to in-service noise exposure as opposed to in-service noise exposure. Therefore, this evidence has limited probative value. While the Veteran stated in his Notice of Disagreement that research has shown that hearing loss can be more evident as time goes on, the VA examiner observed that delayed on set hearing loss is unlikely to occur in the absence of an objectively verifiable noise injury. In support of her opinion she cited to Noise and Military Service – Implications for Hearing Loss and Tinnitus, Institute of Medicine (IOM), National Academy of Sciences, 2006, in which the IOM concluded that, based on current knowledge of cochlear physiology, there is no sufficient scientific basis for the existence of delayed-onset hearing loss. Although the Veteran states that he believes his hearing disability was caused by his in-service noise exposure, made worse by inadequate hearing protection, the Board finds that the Veteran is not competent to formulate an opinion on the etiology of his hearing loss. The etiology of delayed onset hearing loss is not susceptible to lay observation and is a complex medical matter that requires an understanding of the anatomy of the ear and hearing mechanisms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Even though the Veteran states that his induction hearing exam has the wrong date and his separation exam has no date, the Board finds otherwise. The record contains a two-page, standard form Report of Medical Examination from his induction and separation exams. The date of the examination appears on the first page of both reports. He was examined in December 1967 before entering on duty in January 1968. He was examined in October 1971 before being separated in November. While the Veteran objects to his in-service audiogram results being considered in denying his claim for service connection because the tests he may have been given were different than tests used today, the Board finds that his in-service tests were adequate for consideration in this matter. Further, the Board has not based its decision on the in-service audiogram results alone, but has considered the totality of evidence in the record. The Board assigns greater probative value to the normal findings on service separation in October 1971 coupled with the decades intervening service and the first documented complaints and findings for hearing loss along with the negative VA medical opinion. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The VA medical opinion is more probative than the Veteran’s uncorroborated medical opinion as it was based on review of the record including the medical history as provided by the Veteran. Also, the conclusion is supported by a rationale. See Nieves-Rodriguez, 22 Vet. App. 295 (2008) (stating that most of the probative value of a medical opinion comes from its reasoning); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b) 2. Entitlement to service connection for tinnitus. Following a review of the medical and lay evidence of record, the Board finds that the evidence is at least in equipoise as to whether the tinnitus is related to the Veteran’s active service. In March 2015, the VA examiner found, based on the statements of the Veteran, that he has tinnitus but opined that it is less likely than not related to his in-service noise exposure. The examiner noted that there is no medical evidence in the record of the Veteran, during service or since then, complaining of or being treated for tinnitus. On the other hand, the Veteran told the VA examiner that he had experienced tinnitus on an intermittent basis while in service and since service and tinnitus is a disability capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). He said the last time he had experienced tinnitus was three to four years ago when it lasted a few days. In his Form 9, the Veteran wrote that he had experienced ringing in his ears since returning from Vietnam, but it had not been as severe in his later years until recently. Because the Veteran’s symptoms have been intermittent, of limited duration and less severe in later years until recently, the Board attributes less weight to the lack of medical evidence documenting complaints of or treatment for tinnitus in the many years intervening between his service and this complaint. Therefore, the Board finds the statements of the Veteran more probative than the opinion of the VA examiner. Affording the Veteran the benefit of any reasonable doubt, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b). Accordingly, the claim is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Mucklow, Associate Counsel