Citation Nr: 18150114 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-46 855 DATE: November 14, 2018 ORDER The claim of entitlement to service connection for bilateral hearing loss is denied. The claim of entitlement to service connection for tinnitus is denied. REMANDED The claim of entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that the Veteran’s tinnitus began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from May 1973 to May 1994. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss becomes manifest to a degree of 10 percent within one year from 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, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309. Hearing loss and tinnitus are “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to this service connection claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, 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 veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. The claim of entitlement to service connection for bilateral hearing loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board resolves reasonable doubt in favor of the Veteran to find that he has a present diagnosis of bilateral hearing loss. While the most recent VA examination in February 2014 only diagnosed hearing loss for VA purposes in the Veteran’s left ear, a March 2016 private audiology report establishes a diagnosis of bilateral hearing loss for VA purposes. The question at hand is whether the Veteran’s present diagnosis of bilateral hearing loss is etiologically related to active duty service. On the authorized audiological evaluation associated with the Veteran’s February 1973 enlistment examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 X 0 LEFT 15 15 10 X 0 On the authorized audiological evaluation associated with the Veteran’s separation examination in January 1994, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 0 5 LEFT 5 10 5 0 5 The Veteran worked as an Aircraft Electrical and Environmental Systems Craftsman during active duty service. Accordingly, noise exposure is conceded by virtue of this position. In August 2011, VA treatment records reflect that the Veteran reported a gradual deterioration of his hearing over the “past few years.” The audiologist noted noise exposure during active duty service. Audiometric results for the right ear revealed normal hearing through 3000 Hertz (Hz) falling to a moderate to moderately severe sensorineural hearing loss. Results for the left ear revealed normal hearing sloping from a mild to moderately-severe sensorineural hearing loss. The Veteran submitted lay statements from coworkers and his spouse regarding the observable symptomatology associated with his bilateral hearing loss. His coworkers discussed the condition’s effects in the workplace. The Veteran’s wife reported that his hearing worsened over the years, but did not indicate an onset during active duty service or within one year of discharge. Similarly, the Veteran submitted a lay statement reporting that he noticed turning up the volume to hear, and needing to look at people directly when they spoke in order to hear him, but he did not report an onset during active duty service or within one year of discharge. The July 2012 VA examiner did not have access to any of the Veteran’s service records, and while the examiner surmised that his present diagnosis of hearing loss was at least as likely as not related to service, there was no consideration of his multiple in-service audiograms in rendering that decision. As such, it is afforded no probative weight. In October 2012, after a review of the Veteran’s service treatment records, an examiner opined that the Veteran’s bilateral hearing loss was less likely as not related to active duty service. The examiner compared the Veteran’s entrance and separation audiograms, noting that there were no changes in his hearing during service. In June 2013, the Veteran submitted a private audiology report that diagnosed bilateral hearing loss indicative of a noise-induced hearing loss. No further etiological opinion or rationale was provided. In February 2014, the Veteran underwent another VA examination to assess the etiology of his bilateral hearing loss. The examiner reviewed the Veteran’s claims file, and conceded noise exposure during service. However, in-service audiograms conducted as part of the Veteran’s entrance examination and his separation examination reveal that there was no change in hearing thresholds beyond normal variability. The Veteran’s hearing test at discharge showed normal hearing in both ears at all frequencies. As such, the examiner concluded that there was no hearing damage during service. As there was no change in hearing shown on audiograms performed during the Veteran’s military service, it was the examiner’s opinion that the Veteran’s hearing loss was less likely than not caused by or a result of noise exposure while in active duty service. The examiner also addressed the contention that the Veteran’s hearing loss was delayed in its onset. Citing two medical journal articles, the examiner explained that there was not sufficient evidence to conclude that hearing loss due to noise progresses once the noise exposure is discontinued. Nevertheless, on the basis of available human and animal data, which evaluated the normal recovery process, it was unlikely that such delayed effects occurred. Accordingly, it is less likely than not that the Veteran’s hearing loss was caused by or a result of military noise exposure, to include consideration of delayed onset hearing loss. In February 2015, the Veteran submitted a private Disability Benefits Questionnaire (DBQ) finding a present diagnosis of bilateral hearing loss but without an etiological opinion offered. The Board finds that the preponderance of the evidence of record weighs against the establishment of a nexus between the Veteran’s hearing loss and active duty service. The Veteran’s January 1994 separation examination reflects normal hearing bilaterally at discharge with no significant threshold shifts at any frequency. The Veteran’s VA treatment records reflect that he reported a gradual deterioration over the “past few years” in August 2011. While one VA examination report offered a positive nexus opinion, the report did not have access to the Veteran’s service records and thus could not consider his in-service audiograms showing normal hearing at discharge. That examination has been afforded no probative weight. Subsequent VA examinations that considered the Veteran’s service records found that the Veteran’s bilateral hearing loss was less likely than not related to active duty service. While the Veteran submitted private audiology reports that reflect bilateral hearing loss possibly due to noise exposure, they do not establish a nexus with active duty service, and are thus afforded significantly reduced probative weight. While the Veteran and his wife believe that his current hearing loss is related to service, as lay people, they have not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hearing loss is not a matter capable of lay observation, and requires medical expertise to determine. Accordingly, their opinions as to the etiology of his hearing loss are not competent medical evidence. Moreover, the Veteran has not alleged that symptoms of hearing loss began during active duty service, instead estimating onset around 2008. Thus, the Veteran’s own opinion regarding the etiology of his current hearing loss is not competent medical evidence that his disability began in service. The Board finds the opinion of the VA examiners in October 2012 and February 2014 to be significantly more probative than the Veteran and his wife’s lay assertions. As discussed above, the Board finds that the preponderance of the evidence of record weighs against service connection for bilateral hearing loss. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for bilateral hearing loss must be denied. 2. The claim of entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for tinnitus. The question 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 an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran underwent a February 2014 audiology examination in order to determine the etiology of his tinnitus. In the examination, the Veteran reported the onset of tinnitus approximately two years prior to the examination, which was approximately 20 years after any exposure to military noise while on active duty. Given such a delayed onset, the examiner opined that the Veteran’s tinnitus was less likely than not related to active duty service. Post-service VA treatment records do not indicate reports of tinnitus during active duty service. Similarly, the Veteran’s service treatment records do not note complaints relating to tinnitus. While tinnitus is a disorder that may be identified through lay observation alone, the Veteran does not identify that related symptoms occurred during active duty service. To the contrary, he specifically reported tinnitus beginning around 2012, decades after service. The Board will generally accept the date of onset of tinnitus without further examination, and this remains the case in the Veteran’s present appeal. The preponderance of the evidence of record, including a medical opinion and the Veteran’s own lay statements, weigh against a nexus between his reported tinnitus and active duty service. In sum, the preponderance of the evidence is against the claim for service connection for tinnitus. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The claim of entitlement to service connection for a left hip disability is remanded. The Board cannot make a fully informed decision regarding the claim of entitlement to service connection for a left hip disability as the medical opinions of record are insufficient. In June 2011, VA treatment records reflect that the Veteran reported pain associated with his left hip for over 15 years with a particular worsening of symptoms in the last 2 years. He was diagnosed with osteoarthritis of the left hip. In December 2012, the Veteran’s private physician reported that he had longstanding lumbar degenerative changes and, in his medical opinion, that condition precipitated or exacerbated his left hip arthritis. Further support for this conclusion was not provided. In a March 2014 VA examination, the examiner concluded that the Veteran’s hip condition was a new and separate condition that was not caused or aggravated by his back disability. The examiner stated simply that there was no causal relationship. No further rationale was provided, nor did the examiner provide a discussion of aggravation of the disability. The two medical opinions of records are insufficient as they both fail to provide rationales for the conclusions drawn. Furthermore, the VA examination of record does not consider the Veteran’s lay reports indicating an onset of pain in the left hip approximately one year after discharge from service. Accordingly, a new examination is necessary on remand in order to provide a thorough etiological opinion with respect to the Veteran’s left hip osteoarthritis. The matter is REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, schedule the Veteran for a VA examination with a new examiner, if possible, to assess the nature and etiology of his left hip disability. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. The examiner should take a thorough history of observable symptomatology from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Is it at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran’s left hip disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? Please discuss the Veteran’s lay report of pain beginning over 15 years prior to his June 2011 VA treatment. (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s left hip disability was caused by or aggravated by a service-connected disability, to include his back disability? Please discuss the Veteran’s private opinion asserting an etiological relationship with his back disability. (c.) If aggravation of the left hip disability is found to have occurred as a result of a service-connected disability, state if there is medical evidence created prior to the aggravation, or at any time between the onset of aggravation and the current level of disability that shows a baseline for the left hip disability prior to aggravation. Note: The term “aggravation” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel