Citation Nr: 18152522 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-01 442 DATE: November 23, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A hearing loss disability of either ear was not manifested in service; sensorineural hearing loss (SNHL) was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the Veteran has a current bilateral hearing loss disability that is related to an event, injury, or disease in service. 2. Tinnitus was not noted in service or in the first postservice year; the preponderance of the evidence is against a finding that any current tinnitus is related to the Veteran’s service or to any event, injury, or disease therein. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1973 to March 1975. Service Connection Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system. Fountain v. McDonald, 27 Vet. App. 258 (2015). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran contends his hearing loss and tinnitus are due to noise exposure in service. He reports that in service he was a truck driver and while delivering equipment to the 1st Marine Aircraft Wing Group, he was exposed to loud noise from aircraft landing and taking off and was never issued hearing protection. VA audiological testing in June 2014 confirms that the Veteran has a hearing loss disability for VA purposes, as well as a diagnosis of tinnitus. 38 C.F.R. § 3.385. Review of the record also shows that his exposure to excessive noise during service has been established; in that regard, the Veteran is competent to report he was exposed to excessive noise in service and his service records are consistent with his report. What is missing is competent medical evidence linking his current hearing loss disability to the excessive noise exposure in service. For reasons set forth below, the Board concludes that preponderance of the evidence is against the claims and the claims for service connection for bilateral hearing loss and tinnitus must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Review of the record includes service personnel records which show that the Veteran’s military occupational specialty (MOS) was “OrgAutoMech”. He was awarded the Rifle Sharpshooter Badge. Service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnoses related to hearing loss or tinnitus. On enlistment in June 1973, the Veteran underwent audiometric testing which revealed pure tone thresholds, in decibels (dBs), at 500, 1000, 2000, and 4000 Hertz (Hz) of: 15, 5, 5, and 25 in the right ear; and 15, 15, 15, and 5 in the left. At that time, he denied hearing loss or ear trouble. He underwent audiometric testing in February 1974, which revealed pure tone thresholds, in dBs, at 500, 1000, 2000, 3000, and 4000 Hz of: 10, 10, 15, 15, and 10 in the right ear; and 15, 10, 5, 5, and 5 in the left; and in January 1975, which revealed thresholds of: 10, 5, 10, 10, and 20 in the right ear; and 15, 10, 10, 15, and 10 in the left. On separation in March 1975, audiometric testing revealed pure tone thresholds, in dBs, at 500, 1000, 2000, 3000, and 4000 Hz of: 10, 5, 10, 10, and 30 in the right ear and 15, 10, 10, 15, and 10 in the left. VA treatment records show the Veteran was seen in July 2013 for decreased hearing sensitivity, and reported a history of noise exposure. An audiological evaluation revealed a normal to severe sensorineural hearing loss, bilaterally. On the VA examination in June 2014, the VA examiner noted that there was no permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the right ear and the left ear. It was noted that the Veteran reported his pre-service occupation was welder’s helper; his post-service occupation was oil field welder without hearing protection devices; and his recreation noise exposure included hunting without hearing protection devices and shop work/power tools. The examiner opined that the Veteran’s bilateral hearing loss was not caused by or a result of an event in service. For rationale, the examiner noted that the Veteran’s MOS was associated with moderate probability of noise exposure, but that his STRs showed no significant shift in right ear or left ear hearing from induction to separation. The examiner noted that the right ear showed a 5 dB threshold shift from induction to separation, which was not considered a shift beyond test-retest reliability, and that his left ear had audiometric thresholds within normal limits at separation. With regard to tinnitus, the Veteran reported intermittent ringing in the ears that had an onset a year ago. The VA examiner opined that the Veteran’s tinnitus was a symptom associated with the hearing loss, and that his tinnitus was not caused by or a result of military noise exposure. For rationale, the examiner indicated that although his MOS was associated with moderate probability of noise exposure, he reported an onset of tinnitus approximately one year ago, and that a delayed onset of tinnitus was inconsistent with noise exposure, as tinnitus manifests at the time of exposure or shortly after removal of the noise source. The examiner also opined that delayed onset of tinnitus was more likely than not associated with presbycusis. Regarding the claims, as noted above, the Veteran has current disabilities and his exposure to noise in service has been established. Review of the evidence, however, does not show that he was diagnosed with sensorineural hearing loss or tinnitus within one year of separation from service, nor is there any notation of hearing loss or tinnitus during service. Additionally, there is no indication in the record that the Veteran has reported having hearing loss or tinnitus since service, nor were such complaints or findings noted in service or for years thereafter. Significantly, he reported that his tinnitus had an onset a year prior to 2014. Finally, the competent evidence of record does not demonstrate a nexus between noise exposure in service and the Veteran’s hearing loss or tinnitus. The Board finds that the 2014 VA examination report provides the most probative evidence against the claims, and notes that the examiner interviewed the Veteran, reviewed the claims file (to include the Veteran’s service treatment records), acknowledged his in-service noise exposure. and included several points in the rationale, which the Board finds sufficient to support the opinion provided. This VA opinion is therefore persuasive and probative on the issues of whether the Veteran’s hearing loss and tinnitus may be related to service. There is no competent medical evidence to the contrary. The Board acknowledges the Veteran’s contentions that his hearing loss and tinnitus are related to noise exposure in service, but finds his statements are not competent evidence as to a nexus. 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. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007). Here, the Veteran can testify as to the symptoms of his bilateral hearing loss and tinnitus. The question of whether his hearing loss or tinnitus are related to noise exposure in service, on the other hand, requires clinical testing and training to make the appropriate interpretations and conclusions regarding the specific nature of the disability and about what the testing demonstrates in conjunction with the symptoms and experiences reported. (Continued on the next page)   In conclusion, the preponderance of the evidence is against a finding of a nexus between the Veteran’s bilateral hearing loss and tinnitus and his service, to include his exposure to noise trauma therein. Accordingly, the appeal seeking service connection for bilateral hearing loss and tinnitus must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Casula, Counsel