Citation Nr: 18150393 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-44 138 DATE: November 15, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A hearing loss disability was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first post-service year; the Veteran’s current bilateral hearing loss is not shown to be etiologically related to his service. 2. The Veteran’s tinnitus is etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1154; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability due to disease or injury that was incurred or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (1) a present claimed disability; (2) incurrence or aggravation of disease or injury in service; and, (3) a nexus between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1136, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include tinnitus and SNHL as an organic disease of the nervous system) may be presumed to be service connected it manifested to compensable degree within a specified period following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307; 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). 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 veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, where 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, the benefit of the doubt is afforded to the claimant. 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran asserts that he suffers from hearing loss due to his exposure to acoustic trauma in service from artillery fire and heavy construction work without hearing protection. For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. An August 2016 VA audiological examination showed puretone thresholds, in decibels, as: HERTZ 500 1000 2000 3000 4000 Right 20 20 25 60 75 Left 15 20 40 75 75 Speech recognition was 92 percent in the right ear and 90 percent in the left ear, measured by the Maryland CNC test. Based on the foregoing, the Veteran presently has a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran’s service separation document shows his military occupation specialty (MOS) was lineman and he was awarded a Vietnam Service Medal with a Bronze Star. Based on the Veteran’s MOS and his consistent statements of exposure to military weapons fire, the Board finds the Veteran experienced acoustic trauma during his active military service. The question for the Board is whether the Veteran’s bilateral hearing loss is etiologically related to, or aggravated by, an in-service disease or injury. The Veteran’s enlistment audiometric evaluations are presumed to be reported in standards set forth by the American Standards Association (ASA). On January 1966 enlistment examination, audiometry showed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right -5 -5 -5 X -5 Left -10 -10 0 X 0 Service treatment records (STRs) contain no further mention of complaints, diagnosis, or treatment pertaining to hearing loss. His ears were normal on separation. The Veteran had an in-service audiological evaluation during service in January 1969, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded in using ASA units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. To convert the ASA units to ISO units, the Board adds 15 decibels to 500 Hertz, 10 decibels to 1000 Hertz, 10 decibels to 2000 Hertz, 10 decibels to 3000 Hertz, and 5 decibels to 4000 Hertz. The Veteran’s January 1969 separation audiometric test results, converted from ASA units to ISO units were as follows: HERTZ 500 1000 2000 3000 4000 Right 15 10 10 X 5 Left 15 10 10 X 5 Considering the results at separation, it is clear the Veteran’s hearing was within normal limits at enlistment and separation. See 38 C.F.R. § 3.385. On the August 2015 VA audiological examination, the examiner noted that the Veteran’s hearing sensitivity was, bilaterally, within normal limits at entrance and separation of military service, with no clinically significant shift in hearing sensitivity at any level. The examiner noted the Veteran’s significant history of noise exposure following military service. The examiner cited to a 2006 Institute of Medicine study that found that, based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure, and that there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. The examiner concluded that there was no scientific basis on which to conclude that the Veteran’s current hearing loss was caused by or a result of military service, to include military noise exposure. On the August 2016 VA audiological examination, the examiner noted that the Veteran’s hearing was within normal limits, bilaterally, at enlistment and separation with no significant threshold shifts noted (defining a significant shift as a 15 decibel shift). The examiner opined the Veteran’s hearing loss is not at least likely as not caused by or a result of an event in military service. However, the examiner failed to provide rationale for reaching his conclusion. Accordingly, the 2016 VA examination will be given little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran stated in his November 2015 statement in support of his claim that doctors have told him that hearing loss may not manifest until years after the traumatic noise exposure. However, no medical opinion was submitted with medical rationale supporting that conclusion or regarding the etiology of the Veteran’s hearing loss. The evidence does not show that a hearing loss disability manifested in service or within a year following the Veteran’s discharge from service. The earliest diagnosis of hearing loss in the file was in August 2015. Accordingly, service connection for such disability on the basis that it became manifest in service (or on a chronic disease presumptive basis under 38 U.S.C. § 1112) is not warranted. Because SNHL (as an organic disease of the nervous system) is listed in 38 C.F.R. § 3.303(a), the Board has considered whether service connection for hearing loss is warranted based on a continuity of symptomology theory of entitlement. However, continuity of symptomology is not shown. While the Veteran reported on his Notice of Disagreement that the in-service noise exposure over time caused him to manifest bilateral hearing loss, he is not competent to establish a diagnosis of SNHL disability (or continuity of symptoms of a hearing loss disability) by his own recollections of remote events (particularly when his report of such is contradicted by service separation examination audiometry, which found normal hearing acuity). Hearing loss disability is defined in a governing regulation, and must be demonstrated by regulation-specified testing. See 38 C.F.R. §§ 3.385, 4.85. There is no documentation in the record of a hearing loss disability shown by the specified testing until decades after service (in August 2015). Such lengthy post-service interval during which a hearing loss disability was shown weighs heavily against a finding of continuity. Service connection for bilateral hearing loss based on continuity of symptomology is not warranted. Service connection for a hearing loss disability may still be established by competent evidence that the hearing loss, first documented many years after service, is etiologically related to service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has presented no such evidence. Whether a current hearing loss disability may, in the absence of evidence of onset in service and continuity of symptomology since, be related to remote service/exposure to noise trauma therein is a medical question. See Jandreau v. Nicholson, 492 F.3d 1373, 1377 (Fed. Cir. 2007). The Veteran is a layperson, and his own opinion in the matter is not competent evidence; he does not cite to supporting medical opinion, text, or treatise. See Jandreau, 492 F.3d at 1377. Therefore, his lay statements regarding hearing loss will be given minimal weight in comparison to medical opinion. The only competent (medical) evidence in the record regarding a nexus between the Veteran’s current hearing loss and his service is in the opinion of the August 2015 VA examiner who opined that the Veteran’s hearing loss disability is not likely related to his military service/noise trauma therein. The examiner is a medical professional competent to offer the opinion, and the opinion reflects a familiarity with the Veteran’s medical history, and is supported by rationale that cites to accurate factual data. The opinion is probative evidence, and without competent evidence to the contrary, is persuasive in comparison to the remaining evidence of record. The preponderance of the evidence is against this claim; the appeal seeking service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to service connection for tinnitus is granted. The Veteran contends that he has tinnitus loss due to noise exposure during active duty service from artillery fire and heavy construction work without hearing protection. The Veteran reports he is presently experiencing bilateral tinnitus. It is not in dispute that the Veteran has tinnitus. He reports he has experienced ringing in the ears. Tinnitus is a disability that is diagnosed based on self-reports (by the person experiencing it) and is generally incapable of objective confirmation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The question for the Board is whether the Veteran has tinnitus that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran’s tinnitus is etiologically related to the Veteran’s active service. Against the Veteran’s claim is the August 2015 VA examiner’s opinion that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The examiner based her rationale on a lack of evidence that hearing loss or significant threshold changes in hearing sensitivity occurred during military service. However, the Veteran is competent to make reports regarding the symptomatology and onset of these disabilities. See Charles, 16 Vet. App. at 374; see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, 492 F.3d at 1377. While the Veteran stated he did not know the exact date tinnitus manifested, he stated that he has had ringing in the ears for many years and he first noticed it shortly after starting his post-military occupation in the early 1970s, at which he wore hearing protection. The Board finds the Veteran’s statements credible. Considering the nature and circumstances of the Veteran’s MOS, that the Veteran separated from the military January 1969, and that he started his work at his post-military occupation in December 1969, the Board will resolve reasonable doubt in favor of the Veteran that tinnitus manifested to a compensable degree within a year of separation. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.307; 3.309(a). Accordingly, tinnitus will be presumed to be connected to the Veteran’s military service. In light of the Veteran’s in-service occurrence, the objective clinical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for tinnitus and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; Gilbert, 1 Vet. App. At 55. Accordingly, service connection for tinnitus is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Law Clerk