Citation Nr: 18153212 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-45 110 DATE: November 27, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s bilateral hearing loss began during service, within one year of separation from service, or was otherwise caused by his active service. 2. The weight of the evidence is against a finding that the Veteran’s tinnitus began during service, within one year of separation from service, or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from November 1968 to September 1972, to include service in the Republic of Vietnam. He was awarded the Purple Heart. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection 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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. The Veteran filed his service connection claims for bilateral hearing loss and tinnitus in August 2012, which were denied by a September 2013 rating decision. He asserts that his bilateral hearing loss and tinnitus are due to his active service. The Veteran reported that he was exposed to acoustic trauma during his service in the Republic of Vietnam, which included weapons fire and diesel boat engines. The Veteran’s military noise exposure is not at issue, as noise exposure is consistent with his Naval service and his award of a Purple Heart for his service in the Republic of Vietnam and exposure to weapons fire. However, for service connection to be warranted it must be shown that such noise exposure actually caused a hearing loss disability for VA purposes and/or caused tinnitus. 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 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 Veteran’s STRs show that at his entrance examination in February 1968, audiological test results were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 LEFT 0 0 0 0 At the Veteran’s September 1972 separation examination, audiological test results were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 0 LEFT 0 0 0 10 The Veteran’s STRs contain no complaints, symptoms, treatment, or diagnosis of bilateral hearing loss or tinnitus. In July 2013, the Veteran was afforded a VA examination. The Veteran reported noise exposure during his active service that included weapons fire and engine noise. Audiological testing showed bilateral hearing loss for VA purposes. After reviewing the Veteran’s claim’s file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s bilateral hearing loss was less likely than not due to his active service. The examiner reported that the Veteran’s hearing was within normal limits at his entrance and separation examinations with no evidence of threshold shifts. The examiner noted that the Veteran reported additional exposure to hazardous noise, both occupational and recreational. The examiner opined that the Veteran’s tinnitus was less likely than not due to his active service. The examiner noted that the Veteran reported an onset of tinnitus in the mid 1970s after his separation from active service. In September 2013, the Veteran’s physician opined that the Veteran’s bilateral hearing loss and tinnitus were more likely than not related to his active service as he had significant exposure to weapons and engine noise. In August 2016, a VA examiner reviewed the Veteran’s claims file. The examiner opined that the Veteran’s bilateral hearing loss and tinnitus were less likely than not due to his active service. The examiner noted that the Veteran had a high probability of hazardous noise exposure. The examiner noted that the Veteran had a 5 decibel threshold shift at 2000 Hertz in the right ear. The examiner reported that the Veteran had normal enlistment and separation audiological examinations with no evidence of acoustic trauma or hearing loss in either ear. The examiner reported that the Veteran had a positive history of occupational and recreational noise exposure throughout his lifetime. The examiner reported that in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure could not be assumed to exist. Regarding the Veteran’s bilateral hearing loss, it is not disputed that he now has hearing loss for VA purposes. It is also not disputed that the Veteran experienced military noise exposure during his active service. However, military noise exposure alone is not considered to be a disability, rather, when sensorineural hearing loss is first documented more than a year after service separation, it must be shown that the hearing loss was caused by the military noise exposure. The Veteran’s claims file shows that he had normal audiological examinations during his active service. The first objective evidence of hearing loss is not until July 2013, more than four decades after his separation from active service. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician’s statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here several medical opinions are of record, all of which were provided by medical professionals who are presumed to have the training and expertise to opine on an orthopedic condition. As such, each opinion is considered to constitute both competent and credible evidence, which is deemed to be probative. However, the Board must determine what evidence is the most probative. After weighing all the evidence, the Board finds the August 2016 VA opinion is entitled greater probative value over the opinion of the Veteran’s physician. While the Veteran’s physician opined that the Veteran’s bilateral hearing loss and tinnitus were due to his active service, his physician failed to reported that he reviewed the Veteran’s claims file. In addition, the Veteran’s physician did not address the significance of the Veteran’s normal audiological examinations during his active service or the Veteran’s history of occupational and recreational noise exposure throughout his lifetime. Given the depth and support provided in the VA examination, it is clearly more probative than the opinion provided by the Veteran’s physician, and it is therefore entitled to greater weight. The August 2016 VA examiner clearly addressed each of the relevant questions of causation in this case, including concluded that the Veteran’s bilateral hearing loss and tinnitus were less likely than not due to his active service, and specifically explained why. The VA examiner is shown to have reviewed and considered the pertinent evidence of record and to have provided adequate rationale for her opinion. The Veteran’s reported history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Here, the support provided by the August 2016 VA examiner for her opinion is found to be greatly superior to the opinion offered in support of the Veteran’s claims by his physician. Given its grounding in the medical evidence in this case, the VA examiner’s opinion is found to be the most probative evidence in this case, and therefore are afforded the greatest weight. Consideration has been given to the Veteran’s assertion that his bilateral hearing loss was due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372, 1377 n.4 (lay persons not competent to diagnose cancer). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report difficulty hearing, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating audiological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value in the determination of the etiology of the Veteran’s bilateral hearing loss. Regarding tinnitus, the Veteran’s STRs are silent for any complaints or diagnoses of tinnitus. At the July 2013 VA examination, he reported that his tinnitus began in the mid 1970s, while his separation from active service was in 1972. Based on the foregoing, it is not shown that the Veteran’s tinnitus had its onset in service or within one year of his separation of service. Therefore, it is also not shown that the Veteran has had tinnitus continuously since service. The Board acknowledges that the United States Court of Appeals for Veterans Claims has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation, and that lay testimony may provide sufficient support for a claim of service connection. However, here, the Veteran has not asserted that he first noticed tinnitus in service or within one year of service separation. As such, the weight of the evidence is against a finding that the Veteran’s tinnitus either began during or was otherwise caused by his military noise exposure. (Continued on the next page)   Accordingly, the criteria for service connection for bilateral hearing loss and tinnitus have not been met, and the Veteran’s claims are denied. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel