Citation Nr: 18153561 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-03 698 DATE: November 28, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease, including noise exposure. 2. The Veteran’s tinnitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease, including 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, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1968 to January 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Establishing entitlement to direct service connection generally requires: (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 - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as hearing loss or tinnitus (as organic diseases of the nervous system), is shown as such in service or during the presumptive period for chronic diseases, subsequent manifestations of the same chronic disease are generally service connected. Entitlement to service connection based on chronicity of symptoms pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). When all the evidence is assembled, 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 a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current hearing impairment was caused by his military service. Turning to the evidence, the Veteran’s service treatment records do not show a complaint or treatment or diagnosis of hearing loss. The Veteran underwent a hearing examination at the time of his entry to military service in April 1968. Speech recognition was not tested. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -5 (5) N/A -10 (-5) LEFT 0 (15) -10 (0) 5 (15) N/A 5 (10) These results reflect that hearing thresholds were recorded using American Standards Association (ASA) units. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 1000 2000 3000 4000 add 15 10 10 10 5 The figures converted to ISO-ANSI are shown in parentheses in the audiogram above. The Veteran’s service treatment records do not demonstrate a complaint, diagnosis, or treatment of hearing loss while in service. The evidence does not contain a medical examination at the time of the Veteran’s separation from service, but the Veteran completed a report of medical history in December 1969 in which he stated that he had no ear trouble or hearing loss. In January 1970, the Veteran completed and signed a statement that his medical condition had not changed since his last examination. The Veteran’s DD Form 214 indicates that his military occupational specialty was 71B30 Clerk Typist. Service personnel records demonstrate that he was certified as a marksman in June 1968 and as a rifle expert in November 1968. The next evidence concerning the Veteran’s hearing impairment is a VA treatment record dated October 2007, stating that the “patient has the following hearing/auditory barrier to consider when teaching: with background noise.” The Veteran underwent a private audiological evaluation in December 2011. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 30 25 30 LEFT 10 10 30 35 45 The audiologist diagnosed borderline/slight high frequency sensorineural hearing loss in the right ear, and mild/moderate high frequency sensorineural hearing loss of the left ear. The audiologist noted that the Veteran had “military service through with minimal noise exposure per [Veteran] report.” In a February 2012 Statement in Support of Claim, the Veteran said that he trained extensively in rifle fire in 1968 and 1969. The Veteran was afforded a VA examination for hearing loss and tinnitus in April 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 25 40 45 LEFT 10 10 30 35 45 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 98 percent in the left ear using the Maryland CNC word list. The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz. The examiner opined that the Veteran’s current hearing loss was less likely than not caused by or related to his military service for several reasons. First, the Veteran denied hearing loss in the December 1969 report of medical history and said that his condition was unchanged in the January 1970 separation statement. Secondly, the Veteran had filed claims for compensation in 2005 and 2006 and did not claim compensation for hearing loss at that time; the examiner found it would be reasonable to believe that the Veteran would have claimed benefits for hearing impairment if his hearing was impaired at that time. The examiner said that the fact that the Veteran’s right ear was not impaired under the VA definition at the time of the December 2011 audiology test indicated that the hearing impairment was of a recent origin, and she noted that the December 2011 treatment record stated that the Veteran had said that he had minimal hazardous noise exposure during his military service. The Veteran told the VA examiner that his hearing loss had its onset approximately five years before the VA examination, which would have been 38 years after his 1970 separation from service. Finally, the examiner cited the Institute of Medicine’s report entitled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” which states that research does not support the concept of delayed-onset hearing loss. Turning to the criteria for service connection, the Veteran has demonstrated a current disability of bilateral hearing loss. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The April 2013 pure tone threshold results for both ears meet the requirements of 38 C.F.R. § 3.385, and thus the Veteran has bilateral hearing loss disability for the purposes of the laws administered by the VA. Regarding the second requirement for direct service connection, an in-service injury or event, the Veteran’s military occupational specialty of Clerk Typist would not indicate a likely exposure to hazardous noise during service. But the Veteran’s written statement and his personnel records demonstrate training in automatic rifle fire and the Board finds that the Veteran was exposed to hazardous noise during his active duty service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, the evidence is against a finding that the Veteran’s hazardous noise exposure has caused his current hearing impairment. The April 2013 VA examination report holds substantial probative value because the reviewing audiologist reviewed the claims file, considered the Veteran’s lay statements, provided a detailed description of the hearing loss, and provided a detailed rationale for her conclusion that the Veteran’s hearing impairment was less likely than not caused by his military service. There is no contrary medical opinion of record indicating that the Veteran’s hearing loss was caused by his military service, and the Board finds that the April 2013 opinion is persuasive in its conclusion that the Veteran’s current bilateral hearing loss was less likely than not incurred during or caused by his military service. The Board has considered the Veteran’s statements; as a layperson, he is competent to testify regarding observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the probable etiology of a disorder such as sensorineural hearing loss falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Veteran has not demonstrated or alleged expertise in determining a medical nexus, and he does not offer any supporting medical opinion. Therefore, his opinion in this matter has no probative value. Therefore, the Board finds that the evidence is against a determination that the Veteran’s bilateral hearing loss disability was caused by or is otherwise related to his military service. The evidence does not demonstrate that the Veteran’s hearing loss manifested to a compensable degree within one year of separation from service, which would establish presumptive service connection under 38 C.F.R. § 3.307(a). As noted above, the Veteran’s December 1969 report of medical history stated that he had no ear or hearing trouble at that time, and his signed statement of January 1970 said that to the best of his knowledge his medical condition had not changed. The record contains no evidence of hearing impairment until the VA treatment record of October 2007, more than 37 years after the Veteran’s separation from service. Also, the Veteran told the April 2013 VA examiner that his hearing impairment began approximately five years before that examination. Therefore, the evidence is against a finding that the Veteran’s hearing impairment manifested to a compensable degree within one year of separation from service, or that the Veteran had symptomatology of hearing loss continuously since leaving service. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). For the reasons set forth above, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss is related to his service. Accordingly, service connection for bilateral hearing loss is denied. 38 C.F.R. § 3.303, 3.304. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for tinnitus The Veteran also contends that his tinnitus is related to noise exposure during service. The earliest evidence of tinnitus is the December 2011 private audiologist’s report. The Veteran reported a constant tinnitus in both ears at that time. In his February 2012 Statement in Support of Claim, the Veteran said that his tinnitus had its onset after he completed basic training in May 1968 and that it has continued since that time. On April 2013 VA examination, the Veteran reported that he had bilateral constant tinnitus sounding like an air hose, and he said that he was able to ignore it. He indicated that the onset was about 5 to 10 years previously. The VA examiner opined that his tinnitus was less likely than not caused by his military service because (1) the Veteran denied hearing trouble in his December 1969 report of medical history; (2) there are no reports of tinnitus in the Veteran’s service treatment records; (3) the Veteran told the VA examiner that his tinnitus had its onset approximately 5 to 10 years before the April 2013 examination, which would be 38 to 43 years after his service; and (4) the Veteran filed at least two claims for VA compensation before filing his claim for tinnitus, and the examiner felt it was reasonable to believe that the Veteran would have reported tinnitus in his earlier claims if the tinnitus had been present at that time. Turning to the elements of service connection, the evidence demonstrates that the Veteran has a current disability. Tinnitus is, by definition, “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” See Dorland's Illustrated Medical Dictionary 1914 (30th ed. 2003). Because tinnitus is “subjective,” its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has specifically been found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Based on the Veteran’s statements of December 2011, February 2012, and April 2013, the Board finds that the Veteran has a current disability of tinnitus. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). As noted above, the Veteran’s written statement and his personnel records demonstrate training in automatic rifle fire and the Board finds that the Veteran was exposed to hazardous noise during his active duty service, satisfying the second requirement of direct service connection. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Unfortunately, a preponderance of the evidence is against finding a causal relationship between the present tinnitus and the hazardous noise exposure, the so-called “nexus” requirement for direct service connection. Shedden, 381 F.3d at 1167. As noted in the discussion of hearing impairment, the April 2013 VA examination report holds substantial probative value because the reviewing audiologist reviewed the claims file, considered the Veteran’s lay statements, provided a detailed description of the Veteran’s disability and a detailed rationale for her conclusion that the Veteran’s tinnitus was less likely than not caused by his military service. There is no contrary medical opinion of record indicating that the Veteran’s tinnitus was caused by his military service, and the Board finds that the April 2013 opinion is persuasive in its conclusion that the Veteran’s current tinnitus was less likely than not incurred during or caused by his military service. The weight of the evidence is also against a finding that the Veteran’s tinnitus manifested to a compensable degree during service or within one year after his separation from service so that he qualifies for a presumption that the disability was incurred in service. 38 C.F.R. § 3.307, 3.309. It is additionally against a finding that there was continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The Veteran stated in his February 2012 Statement in Support that his tinnitus had its onset following basic training in May 1968. However, the other evidence of record indicates a later onset of tinnitus. The Veteran did not report any hearing impairment in the report of medical history he prepared in December 1969. His service treatment records do not mention complaints, diagnosis, or treatment of tinnitus. In April 2013, the Veteran told the VA examiner that he first experienced tinnitus 5 to 10 years before the time of examination, which would have been 38 to 43 years after his service. Although the Veteran is competent to report having tinnitus continuously since basic training, given the denials of having it during service and the later reports of it starting many years after service, including during a VA examination scheduled in part to address his claim for tinnitus, the Board finds the statements in his February 2012 Statement in Support not credible as to his having tinnitus within a year of his service discharge and continuously since service and places greater weight of probative value on his reports indicating a later onset of tinnitus. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant’s testimony). Therefore, a preponderance of the evidence is against a finding that the Veteran’s tinnitus began in service, within one year after separation, or that it has existed continuously since his service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Overall, the weight of the competent evidence of record is against finding that the Veteran’s tinnitus had its clinical onset in active service or is otherwise related to his period of active service, to include noise exposure therein. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for tinnitus, that doctrine is not applicable, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App., 49, 53-56 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel