Citation Nr: 18153190 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-45 019 DATE: November 27, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran has not been shown to have a hearing loss disability in his right ear for VA purposes. 2. The evidence of record makes it less likely than not that the Veteran’s hearing loss disability in his left ear either began during or was otherwise caused by his military service, to include as a result of any military noise exposure therein. 3. The Veteran’s tinnitus began during service following military noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from May 1973 to May 1977. Service Connection The Veteran is seeking service connection for bilateral hearing loss which he believes is the result of military noise exposure. Specifically, in his July 2016 notice of disagreement, the Veteran states that he spent the better part of four years working on the flight line as an aircraft weapons systems mechanic and a lead team member working on B-52 aircraft. Being on the flight line almost on a daily basis, he was continuously exposed to the running aircraft engines, with B-52 on the one side of the flight line where he worked and KC-135 on the other. At times, multiple aircraft were running engines simultaneously, while no adequate hearing protection was provided. Upon reviewing all lay and medical evidence of record, the Board finds that particularly material to the Veteran’s appeal are his service treatment records (STR), his military service records, an April 2016 report of the VA medical examination and opinion, and the Veteran’s lay statements made in a July 2016 Notice of Disagreement (NOD) and a September 2016 Form 9. The Veteran’s STR includes a May 1973 enlistment physical examination which reflects that the Veteran was in excellent health and had no disqualifying medical conditions. That examination further reflects the following audiometric data: May 1973 HERTZ 500 1000 2000 3000 4000 RIGHT EAR 20 10 10 10 10 LEFT EAR 0 10 10 10 10 A January 1977 separation physical reflects the following audiometric data: January 1977 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 0 0 LEFT 5 0 0 0 0 In April 2016, the VA provided medical examination by a licensed VA audiologist to determine the nature and etiology of the Veteran’s claimed disabilities. The examiner reviewed the Veteran’s claims file, examined the Veteran in-person, and administered a puretone audiometry and the Maryland CNC tests. The report reflects the results of the puretone audiometry test, as follows: April 2016 HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 15 25 LEFT 10 5 5 30 45 The report further reflects the speech recognition scores using Maryland CNC Test, as follows: RIGHT EAR 100% LEFT EAR 100% Following the examination, the audiologist issued a report of examination and opinion. The report reflects that the examiner reviewed the Veteran’s STR, to include the two audiograms from May 1973 and January 1977, and opined that both reports show normal hearing ranges and no positive permanent threshold shift in the Veteran’s hearing acuity. The examiner noted that the Veteran’s claims file has no evidence showing signs of hearing loss at or near discharge. At the present, the examiner noted that the Veteran currently has sensorineural hearing loss in the right ear in the frequency range of 6000 Hz or higher, which does not meet the regulatory criteria as set forth in 38 C.F.R. § 3.385 to constitute a disability for VA purposes. For the left ear, the examiner noted that hearing loss is evidenced in the frequency range of 4000 Hz at 45 dB which, pursuant to § 3.385, is a disability due to hearing impairment. The examiner further noted a permanent positive threshold shift in both ears but opined that the Veteran’s current hearing loss is not at least as likely as not caused by or a result of an event in service. For the rationale, the examiner explained that the Veteran’s medical records revealed the absence of hearing loss near the time of military discharge. The examiner noted that the Veteran’s civilian activities after service included hunting, riding motorcycles, and using saw mills. Accordingly, the examiner concluded that the threshold shift in Veteran’s hearing acuity and current hearing loss in the left ear must have occurred as a result of civilian occupational and recreational noise exposure or other cause unrelated to military service. Then, the examiner clinically diagnosed tinnitus and opined that tinnitus also was unrelated to service because tinnitus is a known symptom of hearing loss which is not related to service. Based on this opinion, the RO denied the Veteran’s claim for hearing loss. In the July 2016 NOD, the Veteran states that he spent the better part of four years working on the flight line as an aircraft weapons systems mechanic and a lead team member working on B-52 aircraft. Being on the flight line almost on a daily basis, he was continuously exposed to the running aircraft engines, with B-52 on the one side of the flight line where he worked and KC-135 on the other. At times, multiple aircraft were running engines simultaneously, while no adequate hearing protection was provided. After a long work day on the flight line, the Veteran remembered, he was lying in bed having ringing in his ears. At that point, the Veteran had never heard of tinnitus and could not recall ever being asked about it or knowing of an existence of this medical condition until many years after service. The Veteran also stated that he had to qualify with the M-16 annually. The Veteran believes that all this exposure to noise caused both his current hearing loss and tinnitus. In September 2016 Form 9, the Veteran reiterates contending the denial of service connection for bilateral hearing loss and tinnitus because, in his opinion, these disabilities are due to almost-daily working on the flight line with jets running. 1. Entitlement to service connection for bilateral hearing loss Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated during military service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the Board finds that the Veteran is competent to describe being exposed to loud noise in service. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further finds that the Veteran’s competent statements concerning his regular exposure to loud noise in service are uncontradicted and are consistent with his military occupational specialty as a weapons mechanic, the nature of his duties working on the flight line directly next to aircraft at airbases where he was stationed, and other circumstances of his service, as reflected in his military service records. Accordingly, the Board concedes that the Veteran had an acoustic trauma due to routine exposure to loud noises in service. However, in addition to an in-service event, establishing service connection also requires the competent evidence showing the existence of a present disability and a relationship between a relevant in-service event or incurrence of a disease and the claimed disability. Shedden, 381 F.3d at 1167. In this case, service connection for bilateral hearing loss is not warranted because the evidence of record does not show a “disability due to hearing impairment” in the right ear and does not show that hearing disability in the left ear etiologically relates to service. A. Right Ear Here, the Board finds that the evidence of record does not show that Veteran’s hearing loss in the right ear constitutes a present disability. To establish the “present disability” and thus satisfy this requirement, the evidence of record must show an existence of the claimed disability either before filing the claim, Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013), or at the time of filing the claim or during its pendency, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board notes that the normal hearing range falls between 0 and 20 decibels on a puretone audiometry test, and the higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For VA purposes, however, some degree of hearing loss does not constitute a disability unless the Veteran’s auditory acuity meets regulatory criteria set forth in 38 C.F.R. § 3.385. To meet these regulatory criteria, the evidence must show one of the following: (1) a puretone auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 are 26 decibels or greater; or (3) speech recognition scores on the Maryland CNC Test are less than 94 percent. Id. The Board emphasizes that, before service connection may be considered any further, reaching or surpassing at least one of these three regulatory threshold levels is necessary to constitute a “disability due to hearing impairment,” which is discrete from having some degree of hearing loss, as recognized in Hensley, supra. The purpose of 38 C.F.R. § 3.385 is to establish the precise threshold levels at which hearing loss becomes disabling. Hensley, 5 Vet. App. at 158. Unless the regulatory criteria are met, the Veteran’s impaired hearing will not constitute a disability for VA purposes. See § 3.385. “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (emphasis added in the original). Absent proof of a present disability, there can be no valid service-connection claim. Id. In this case, upon review of the Veteran’s audiometric data on file, to include the May 1973, January 1977, and April 2016 audiology reports, the Board finds that the Veteran’s hearing impairment in the right ear does not meet and never has met the regulatory criteria of 38 C.F.R. § 3.385 setting the threshold levels where hearing loss becomes a disability for VA purposes. Accordingly, absent proof of a present disability, the Board finds that service connection for hearing loss in the right ear is not warranted. B. Left Ear Service connection is also not warranted for hearing loss in the Veteran’ left ear because the evidence of record does not show any relationship between Veteran’s current hearing loss in the left ear and his exposure to noises in service. Such a relationship must be established by the competent evidence. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The record, as discussed below, is devoid of the competent evidence showing this relationship which is necessary to establish service connection. In the interim, the Board has considered that service connection may be granted for a disease, as in this case, first diagnosed after discharge but only 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). The evidence of record does not show that the Veteran incurred his hearing loss in service. In claims absent evidence showing an in-service incurrence of a disease, certain chronic organic diseases of the nervous system, to include sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree of at least ten percent within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran’s claims file is devoid of any evidence showing that Veteran’s hearing loss was manifest within one year after his discharge. If the chronicity of a manifested disease resulting in current disability is unclear, service connection may be established by the continuity of symptomatology between the time of initial manifestation of the disease through the time when the disease is clinically diagnosed. See 38 C.F.R. § 3.303(b). The evidence of record does not demonstrate that Veteran’s hearing began to decline in service and then has continuously deteriorated through the diagnosed hearing loss for VA purposes. This leaves the direct service connection as the only basis and thus the Board turns to the two pieces of evidence material to the relationship between Veteran’s current hearing loss and his exposure to noise in service, his lay statement that his hearing loss is due to almost-daily working on the flight line with jets running and the April 2016 VA examiner’s medical opinion that the Veteran’s hearing loss is as a result of civilian occupational and recreational noise exposure or other cause unrelated to military service. The Veteran did not provide or identify any additional lay or medical evidence. Concerning the Veteran’s lay statement, an issue of whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In order for any statement to have any probative value, the witness must be competent to testify as to the facts under consideration. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran, as a layperson without specialized training and knowledge, does not have the requisite competence to render an opinion as to the diagnosis, etiology, or onset of a disability such as hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, an examination for VA purposes to determine the nature and etiology of hearing loss must be conducted by a licensed audiologist. See 38 C.F.R. § 4.85(a). The evidence of record does not demonstrate neither that the Veteran is a licensed audiologist nor that he otherwise possesses the requisite expertise to render opinions about the etiology of hearing loss, which also requires sophisticated testing. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In contrast to lay statements, particularly when the medical evidence is required, the Board generally finds that the VA medical opinions have great evidentiary weight. In assessing the probative value of a medical opinion, the examiner’s access to the claims file and the thoroughness and detail of the opinion are essential. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The medical opinions should be based on sufficient facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The medical opinions also should be factually accurate, fully articulated, and provide sound reasoning connecting data to conclusions. Id. at 303-304. The above criteria are satisfied in this case. The VA examiner reviewed the Veteran’s claims file and his medical history, examined the Veteran in-person, administered a series of tests, considered the results, and rendered the medical opinion which is based on the comprehensive data and supported by sound rationale. Accordingly, the Board assigns the April 2016 VA medical opinion significant probative weight. Further, reiterating that the issue of the relationship between Veteran’s hearing loss and service is not susceptible to lay opinions, the Board finds that the April 2016 VA medical opinion is the only competent evidence on the issue. This evidence does not show that the Veteran’s hearing loss relates to service. The Veteran neither provided nor identified any competent evidence to the contrary. Accordingly, the Board finds that the preponderance of the evidence weighs heavily against the Veteran’s claim of entitlement to service connection for bilateral hearing loss. A claim where the preponderance of the evidence weighs against it must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection for bilateral hearing loss is denied. 2. Entitlement to Service Connection for Tinnitus Entitlement to service connection for tinnitus is warranted in this case because the evidence of record shows that it is at least as likely as not that the Veteran had incurred his tinnitus in service due to routine exposure to loud noises therein. A tinnitus symptomatology is competently observable by a lay person. See Charles v. Principi, 16 Vet. App. 370 (2002). A lay testimony describing the symptoms that supports a later diagnosis by a medical professional can competently and sufficiently establish a diagnosis of a condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The claims of entitlement to service connection for tinnitus, where the evidence of record shows an onset tinnitus along with acoustic trauma in service and a clinical diagnosis of tinnitus at a later date, ultimately turn on the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran competently and credibly reported his tinnitus symptoms, and the VA examiner confirmed clinical diagnosis of tinnitus in April 2016. The record is devoid of any evidence to the contrary. Thus, the Board finds the present disability of tinnitus and, as discussed above, concedes the acoustic trauma due to the Veteran’s routine exposure to noise in service. In assessing the relationship between tinnitus and service, the Board notes that the Veteran did not report his tinnitus onset until filing his claim many years after service. In the July 2016 NOD, the Veteran remembers that after a day on the flight line he would lay in bed hearing ringing in his ears. But there is no evidence corroborating the Veteran’s account of his onset of tinnitus in service and no recorded complaints prior to 2016. The lengthy periods without recorded complaints, albeit not dispositive, are a factor that may weigh against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the Board finds that the timing of the first report of tinnitus many years after its incurrence in service raises a reasonably doubt about the accuracy of the Veteran’s recollection many years later and thus weighs against the claim. The Veteran, however, states that he was unaware of the existence of this medical condition until the later years when he started aging and talking about medical issues with other Veterans, while his tinnitus began in service and has continued to this day. This statement reasonably explains an absence of the earlier recorded complaints, while no inconsistencies are present to undermine the Veteran’s credibility. Accordingly, the Board finds that the evidence is in relative equipoise. In cases, such as this, where the positive and negative evidence material to the matter at issue strike an approximately equal balance, the benefit of the doubt is accorded to the Veteran and the claim must be resolved in the Veteran’s favor. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. Therefore, resolving all reasonable doubt in the Veteran’s favor, entitlement to service connection for tinnitus is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Bardin, Associate Counsel