Citation Nr: 18149526 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 17-02 281 DATE: November 9, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED The claim of entitlement to service connection for tinnitus is remanded. FINDING OF FACT Bilateral hearing loss did not originate in service or until years thereafter, and is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2017). In addition, service connection for certain chronic diseases, including organic diseases of the nervous system, such as sensorineural hearing loss, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that bilateral hearing loss is related to in-service noise exposure. Before addressing the merits, the Board notes that a June 2015 rating decision denied service connection for bilateral hearing loss and that the Veteran did not appeal this decision. However, the Veteran submitted new and material evidence within one year of that decision, and is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). That is, the Veteran’s claim of service connection for bilateral hearing loss is not an application to reopen a previously denied and final decision. The Board will proceed with the regular analysis for service connection claims. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). A May 2015 VA hearing loss examination documents bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. Second, the Board finds that the Veteran was not exposed to in-service acoustic trauma. In this regard the Veteran’s DD 214 indicates that he served as a cook during service. That particular duty does not involve any obvious exposure to acoustic trauma. However, even assuming that the Veteran was exposed to acoustic trauma in service, the Board finds that the evidence of record does not support a finding that the bilateral hearing loss is related to active service or that assumed acoustic trauma. There are several opinions of record addressing this issue. Initially, however, the Board will note that the earliest VA treatment records documenting difficulty with hearing are from May 2009, when the Veteran indicated that diminished hearing is a barrier to his learning. VA provided an examination in May 2015. The Veteran’s auditory thresholds showed bilateral sensorineural hearing loss. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not caused by or the result of an event in military service. The examiner noted that the Veteran had first reported the onset of hearing loss seven to eight years earlier. The decrease in hearing was first noticed on examinations approximately 15 years earlier, more than 25 years post-service. All evidence, objective and subjective, indicated the onset of bilateral hearing loss 25 years after the Veteran separated from service. The examiner continued, noting that although excessive noise exposure on active duty is conceded, there must be a nexus of auditory damage on active duty to relate current hearing loss to active duty. The examiner explained that the Institute of Medicine (2006) panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was “unlikely”. The examiner concluded that there was objective evidence against a nexus in this case and that the evidence was against a finding that current hearing gloss was caused by or a result of the Veteran’s military service, including noise exposure. In September 2015, VA received an August 2015 opinion from Dr. JB. The statement indicated that one could not say exactly how long the Veteran’s bilateral hearing loss existed prior to his date of diagnosis or definitively state its cause. However, it was at least as likely as not the Veteran’s exposure to gunfire and heavy equipment during his active duty service contributed to or caused his current hearing loss and tinnitus. The physician indicated that the Veteran’s sensorineural hearing loss was worse than what would be expected for his age and that the configuration of hearing loss was consistent with noise induced hearing loss. VA provided a clarifying opinion in October 2015. The examiner noted that the May 2015 VA opinion was provided by a licensed audiologist who was trained specifically in VA examinations and in claims file review and used all medical records available and conducted an extensive interview with the Veteran. The examiner further noted that the VA opinion took into account the Veteran’s extensive civilian occupational noise, including a decrease in hearing noted on hearing conservation examinations from the Veteran’s civilian employer well after separation and the Veteran’s exposure to recreational noise. The examiner then focused on the favorable opinion given by Dr. JB, an otolaryngologist. The examiner agreed with Dr. JB’s conclusion that the Veteran’s hearing loss was greater than expected for his age. However, the examiner explained that due to the onset of hearing loss, decrease while in civilian employment, and all the Veteran’s STRs and medical records being silent for hearing loss until many years post separation, it was less likely as not that hearing loss was due to military noise exposure, but rather was related to civilian occupational noise that was occurring at the time of the onset of hearing loss. The examiner continued, noting that although in-service noise exposure is conceded and although the relationship between noise, auditory damage, and hearing loss is well documented in research, there must be a nexus of auditory damage to link current hearing loss to active duty noise exposure. The examiner again referred to the Institute of Medicine (2006) panel that concluded that prolonged delay in the onset of noise-induced hearing loss was “unlikely”. Thus, the October 2015 VA opinion concurred with the May 2015 VA opinion. As discussed above, there is evidence both unfavorable and favorable towards the Veteran’s claim. After a thorough review of the record, the Board finds that the VA examinations and opinions rendered in May 2015 and October 2015 are the most probative source of evidence regarding the question of whether the Veteran’s bilateral hearing loss is etiologically related to service. The August 2015 private opinion from Dr. JB may be reduced to the following points: 1) the Veteran’s level of hearing loss was worse than what would be expected for people his age; 2) the Veteran’s hearing loss was consistent with noise-induced hearing loss; and 3) thus, the Veteran’s hearing loss was related to conceded in-service noise exposure. This opinion, as addressed by the October 2015 addendum VA opinion, does not account for the Veteran’s post-service occupational and recreational noise exposure. In addition, it does not address the unlikelihood that hearing loss diagnosed many years after service is etiologically related to remote acoustic trauma during service. In contrast, the May 2015 and October 2015 VA opinions accounted for the Veteran’s full history, reflected consideration of the totality of his medical records, and supported the opinions with a thorough rationale. The evidence is not in equipoise. Indeed, the VA opinions are significantly probative because they are thorough and predicated on a deeper understanding of the Veteran’s history. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). In making this finding, the Board has considered the Veteran’s lay statements that purport to link his bilateral hearing loss to service. The Board finds that the Veteran’s lay statements are not competent evidence. Although it is error to categorically reject a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). But here, the specific etiology of bilateral hearing loss, which is an internal medical process not capable of lay observation, is clearly distinguishable from ringing in the ears, a broken leg, or varicose veins. See Jandreau, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002). In short, the competent and probative evidence of record weighs against a finding that the Veteran’s bilateral hearing loss had onset in or is otherwise related to service. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for tinnitus The Board finds that remand is required for an opinion that addresses the Veteran’s claim. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an opinion. An examination and opinions were rendered in May and October 2015, but no diagnosis of tinnitus was rendered in May 2015, and no opinion was provided in October 2015. An examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, an August 2015 private opinion from Dr. JB diagnosis the Veteran with tinnitus and relates it to his military service and noise exposure therein. The opinion is not sufficient to support the award of service connection because the rationale is inadequate. Nevertheless, because there is evidence of currently diagnosed disability, an in-service event, and an indication that the current disability may be associated with the in-service event, remand for a VA examination is required. The matter is REMANDED for the following action: 1. Provide the Veteran with an appropriate examination to determine the etiology of his tinnitus. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the tinnitus had onset in, or is otherwise related to, active military service. The examiner must specifically address the August 2015 private opinion from Dr. JB that relates tinnitus to acoustic trauma sustained during the Veteran’s service. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel