Citation Nr: 18153685 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 13-30 114 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 is not found to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of service discharge. 2. The Veteran’s tinnitus is not found to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of service discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from September 1955 to August 1960. He also served in the U.S. Air Force Reserves from August 1960 to September 1961. These claims come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Chicago, Illinois currently has jurisdiction over the appeal. In July 2017, the Board remanded the case for additional development, including association of additional VA treatment records and an addendum medical opinion. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 C.F.R. § 3.303; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Bilateral hearing loss The Veteran contends that his bilateral hearing loss is related to his military service. The Veteran’s service treatment records (STRs) from his period of active duty are fire-related and unavailable. In July 2013, a formal finding was issued by the agency of original jurisdiction (AOJ) informing the Veteran that a complete copy of his STRs were unavailable. A February 2018 letter to the Veteran requested that he provide additional information about his Reserve unit and the names of medical facilities where you received care to allow VA to obtain any treatment records related to this period of service; however, the Veteran did not respond to this letter. Because of the limitations created by the Veteran’s unavailable STRs and the circumstances of his service, the Board concedes that the Veteran had noise exposure during his service. Furthermore, the Board acknowledges that the Veteran has a current diagnosis of hearing loss for VA purpose as the results from a November 2011 audiology evaluation that meet the criteria set forth in 38 C.F.R. § 3.385. The Board has first considered whether service connection is warranted on a presumptive basis. However, the available evidence fails to show that the Veteran manifested hearing loss to a compensable degree within the one year following his release from active duty. According to the Veteran’s lay statements from a November 2011 VA examination, he first noticed symptoms of hearing loss ten years prior (i.e., 2000-2001). This means that the Veteran first noticed symptoms approximately 40 years after service discharge. Therefore, presumptive service connection for hearing loss is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is also against a finding of direct service connection for bilateral hearing loss. While the record shows that the Veteran has bilateral hearing loss for VA purposes, the probative evidence of record demonstrates that the hearing loss is not related to his service and was not caused or aggravated by any incident, disease, or injury in service. See, e.g. October 2009 VA Audiology Consult; see also November 2011 Hearing Loss and Tinnitus Disability Benefits Questionnaire. In this regard, the Board places great probative weight on the information provided in October 2009 and November 2011 VA examinations and a 2017 VA audiologist’s addendum opinion. The VA audiologist in an October 2009 consult noted that the Veteran had experienced hearing loss and ringing in his ears “for some time”; however, the Veteran had been regularly exposed to noise during his job at a tire factory for 20 years without proper ear protection. The Veteran also reported getting a piece of steel caught in his left ear at work, perforating his ear drum. In November 2011, a VA audiologist opined that the Veteran’s hearing loss was less likely than not (less than a 50 percent probability) incurred in or caused by or a result of military noise exposure. The Veteran discussed his military occupational specialty as a communication center specialist and his work on a teletype machine that was very noisy. The Veteran recalled that no hearing protection was provided. The examiner noted there were many other intervening causes that would have either caused or contributed to hearing loss. For example, the Veteran worked as a truck driver for five years; he was a garbage collector; he also worked in a tire factory for 30 years and that included 20 years of which he did not have adequate hearing protection. Furthermore, the examiner reasoned that the Veteran’s hearing-loss “timeline”, (i.e., the fact that he had not received testing for his hearing loss until 2009) and the fact that his symptoms were not clearly manifested until the ten years preceding the 2011 exam, meant that there was insufficient evidence to opine that the Veteran’s hearing loss was caused by or a result of his military service. In June 2017, a VA audiologist opined that it was less than 50 percent likely that the Veteran’s hearing loss was attributable to military noise exposure. The audiologist referred to previous statements by the Veteran about his engagement in noise-hazardous occupations after leaving service, the fact that he had worked as a truck driver and garbage collector, and the fact that he worked at a tire factory without hearing protection for 20 years. The audiologist also noted issues regarding the credibility of the Veteran’s 2012 statement that hearing protection was worn during his entire 30-year tenure at the tire factory. The audiologist cited to changes in the occupational safety and health administration (OSHA) regulations that mandated hearing conservation programs in the 1980s. The dates of these changes are consistent with the Veteran’s initial account of working in civilian employment without hearing protection. The June 2017 VA audiologist also referenced the piece of steel that punctured the Veteran’s eardrum while he was working in a factory. The November 2011 and June 2017 opinions had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez, 22 Vet. App. 295 (2008). No contrary medical opinion is of record. The Board notes that the Veteran has contended that his bilateral hearing loss was the result of his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to….” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran’s hearing loss and any instance or event of his service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Specifically, while the Veteran is competent to describe his current symptoms, the Board accords his statements regarding the etiology of his hearing loss little probative value because he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issued. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship, and requires the administration and interpretation of diagnostic testing. In the instant case, there is no suggestion that the Veteran has had any medical training. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran are non-probative evidence. Furthermore, to the extent that the Veteran has made conflicting statements about the availability of hearing protection during his tenure at the tire factory and the onset of his hearing loss, the Board finds the Veteran’s account of events to lack credibility. Specifically, the Veteran reported that he did not use hearing protection at the tire factory in October 2009 and that he had not used hearing protection for 20 years while working at the tire factory in November 2011. However, he reported that he had used hearing protection for his entire 30-year career at the tire factory in a 2012 statement. The June 2017 examiner explained that OSHA regulations mandated hearing conservation programs in the 1980s and that the dates of these changes are consistent with the Veteran’s initial account of working in civilian employment without hearing protection. Although the Veteran reported that his hearing loss symptoms during service in an October 2018 statement, he reported complaints related to his hearing loss beginning in approximately 2001 in a November 2011 VA examination report. Therefore, the Board finds that any current, contradictory, assertions as to the Veteran’s use of hearing protection during his entire career at the tire factory and a continuity of symptoms since service are deemed not credible. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant’s testimony). Consequently, the Board assigns no probative weight to such statements. The Veteran’s hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service and his hearing loss did not manifest within one year of service discharge. Consequently, service connection for bilateral hearing loss is not warranted. In light of the foregoing, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant claim, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Tinnitus The Veteran also asserts that he is entitled to service connection for tinnitus. The Veteran’s STRs from his period of active duty are fire-related and unavailable. In July 2013, a formal finding was issued by the AOJ informing the Veteran that a complete copy of his STRs were unavailable. The Board has first considered whether service connection is warranted on a presumptive basis. See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system where there is evidence of acoustic trauma). There is no clinical evidence to show, and the Veteran has not alleged, that he manifested symptoms of tinnitus within the one year following his release from service. During a November 2011 VA examination, the Veteran estimated that the ringing in his ears began approximately ten years prior (i.e., 2000-2001). As noted by the audiologist, the estimated time of onset was very remote from the Veteran’s time of service. As such, presumptive service connection for tinnitus is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is against the Veteran’s claim for service connection for tinnitus. VA treatment records from October 2009 show that the Veteran had “occasional ringing in his ears for quite some time.” In November 2011, a VA audiologist opined that the Veteran’s tinnitus was less likely than not (less than a 50 percent probability) incurred in or caused by or a result of military noise exposure. The audiologist discussed the fact that the Veteran had contributing factors that are often associated with tinnitus, including hearing loss, daily alcohol and nicotine consumption, combined with Naproxen and asprin. As with the Veteran’s hearing loss, the examiner reasoned that the Veteran’s tinnitus “timeline”, (i.e., the fact that his symptoms were not clearly manifested until the ten years preceding the 2011 exam), meant that there was insufficient evidence to opine that the Veteran’s tinnitus was caused by or a result of his military service. In a June 2017 addendum opinion, the VA’s audiologist opined that it was less than 50 percent likely that the Veteran’s tinnitus was attributable to military noise exposure. Once again, the audiologist referred to previous statements by the Veteran about his engagement in noise hazardous occupations after leaving service, the fact that he had worked as a truck driver and garbage collector, and the fact that the he worked at a tire factory without hearing protection for 20 years. The audiologist also noted that “in light of the injury to his ear while working at Firestone... and in light of the reported onset of tinnitus being approximately 40 years after military service ended... it remains the opinion of this examiner that the onset of tinnitus is less than 50 percent likely to be attributable to military noise exposure.” The VA audiologist determined that the Veteran’s tinnitus is likely a symptom associated with his hearing loss. The Board finds the opinions of the VA audiologist written in 2011 and 2017 to be the most probative evidence of record. The VA examiner performed the necessary audiological testing and interviewed the Veteran; the VA examiner reviewed the relevant symptoms, noted the Veteran’s military occupational specialty, and provided clear conclusions and supporting data, including a reasoned medical explantation connecting the two. See Nieves-Rodriguez, supra. There is no contrary opinion of record. The Board recognizes that the Veteran is able to establish the existence and severity of his tinnitus, in part, because the symptoms of the condition are subjective. However, in this case, the Veteran’s own statements cannot establish a nexus between the existence of his tinnitus and any event or injury from service. Indeed, as noted above, the Veteran explicitly told two audiologists that he believed the onset of his symptoms to date to the early 2000s. Even if the Board were to find these statements to be competent and credible, they still create a gap of approximately 40 years between the Veteran’s service and the onset of his tinnitus. As a result, the Board can find neither a direct nexus nor any continuity of symptomatology linking the Veteran’s tinnitus to his service. In addition, the Veteran has made conflicting statements about the onset of his tinnitus, the Board finds the Veteran’s account of events to lack credibility. Specifically, the Veteran reported that his tinnitus began during service in an October 2018 statement. However, he reported that his tinnitus began in approximately 2001 or 2002 in a November 2011 VA examination report. Therefore, the Board finds that any current, contradictory, assertions as to a continuity of symptoms since service are deemed not credible. Cartwright v. Derwinski, supra. Consequently, the Board assigns no probative weight to such statements. The Veteran’s tinnitus has not been shown to be causally or etiologically related to any disease, injury, or incident in service and his tinnitus did not manifest within one year of service discharge. Consequently, service connection for tinnitus is not warranted. In light of the foregoing, service connection must be denied. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for tinnitus. As such, that doctrine is not applicable in the instant claim, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD F. Lanton, Associate Counsel