Citation Nr: 18154378 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-52 472 DATE: November 29, 2018 ORDER Service connection for left ear hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss is not linked to disease or injury incurred or aggravated in active service. 2. The Veteran’s tinnitus is not linked to disease or injury incurred or aggravated in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1973 to May 1977. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); see Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Left Hearing Loss The Veteran claims service connection for left ear hearing loss, which he stats is due to in-service noise exposure. For the following reasons, the Board finds that service connection is not established. For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. The June 2015 VA examination report reflects puretone thresholds based on audiometric testing that satisfy the criteria for a hearing loss disability in the left ear. See 38 C.F.R. § 3.385. Additionally, the evidence establishes that the Veteran was exposed to noise during active service. The June 2015 VA examination report reflects that the Veteran reported noise exposure during service from working around jet and helicopter engines four to five days per week for over three years. His DD 214 shows that he served as an Aircraft Rescue and Firefighting Specialist, with a military occupational specialty (MOS) number of 7051. This MOS has a high probability of noise exposure. See Department of Defense’s (DOD’s) Duty MOS Noise Exposure Listing; Veterans Benefits Administration Manual, M21-1 III.iv.4.B.3.c.; 38 C.F.R. § 3.303(a) (service connection for a claimed disability requires consideration of the circumstances of service). Accordingly, based on the Veteran’s statements and his MOS, in-service noise exposure is established. The preponderance of the evidence weighs against a link between the Veteran’s current left ear hearing loss disability and his in-service noise exposure. His service treatment records reflect audiograms showing puretone thresholds in the normal range throughout service, including at separation. See Hensley, 5 Vet. App. at 159. The May 1977 separation examination report also shows that the Veteran’s ears, including auditory acuity, were clinically evaluated as normal. The Veteran has stated that his hearing loss began in active service. See May 2014 VA Form 21-526EZ. This statement is not credible, as it is inconsistent with the objective medical evidence of record. Specifically, service treatment records show that the Veteran had normal left ear hearing throughout service, including in May 1977 at separation. These records carry more weight than the history reported by the Veteran many years later in support of a claim for benefits, and directly conflict with that history. The Board also notes that there is no mention of hearing problems in a March 1978 VA general examination report. Accordingly, hearing loss during service or within the first year following separation is not established. The June 2015 VA medical opinion constitutes probative evidence weighing against a link to service. More specifically, a VA examination was performed in June 2015. In the examination report, the examiner opined that the Veteran’s left ear hearing loss was less likely than not caused by or a result of an event in service. The examiner explained that the Veteran’s in-service audiological examinations showed normal hearing, with no significant threshold shift from his entrance to discharge. The examiner further explained that based on review of a report by the Institute of Medicine (IOM), delayed post-exposure noise-induced hearing loss (i.e. the possibility that a delayed onset of hearing loss vis-à-vis noise exposure could be related to such exposure) was not likely. The examiner concluded that if hearing is normal on discharge, and there is no permanent significant threshold shift greater than normal progression and variability on re-testing, then there was no basis on which to conclude that a current hearing loss is causally related to military noise exposure. The June 2015 VA medical opinion is probative, as it represents the conclusion of a medical professional based on review of the record and examination of the Veteran, and is supported by a specific explanation. It outweighs the Veteran’s opinion on this issue, as he is not shown to have relevant medical expertise. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating that the Board may properly find that a medical opinion carries more weight than lay testimony); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (“the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence”). Moreover, the issue of whether the Veteran’s hearing loss is related to his in-service noise exposure is a medical determination that requires competent medical evidence, as a cause-and-effect relationship cannot be observed based on lay observation alone, given the lapse in time. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, because the Veteran is a lay person in the field of medicine and not shown to possess the required expertise, his unsupported opinion is not competent evidence, and thus is not probative. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). Accordingly, the VA medical opinion carries more evidentiary weight than the Veteran’s statements on this issue. In sum, the preponderance of the evidence weighs against a link, or nexus, between the Veteran’s current left ear hearing loss and his in-service noise exposure. Therefore, the criteria for service connection on a direct basis are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). As discussed above, the Board finds that the Veteran’s hearing loss did not manifest in service or within a year following separation. Thus, service connection may not be awarded based on a chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis for hearing loss that manifests to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Because the preponderance of the evidence weighs against the claim, it must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Tinnitus The Veteran claims service connection for tinnitus, which he states is due to in-service noise exposure. For the following reasons, the Board finds that service connection is not established. The service treatment records do not show treatment or complaints of tinnitus. The Veteran has stated that his tinnitus began in service. See May 2014 VA Form 21-526EZ. The Board finds that this statement is not credible. The June 2015 VA examination report reflects that the Veteran told the examiner that his tinnitus approximately began 35 years earlier, which would be around 1980, and thus several years after separation. The fact that there is no documentation of treatment or complaints of tinnitus for many years after separation also weighs against a finding that the Veteran’s tinnitus began in service or shortly after service. In this regard, a proper consideration for the trier of fact is the amount of time that has elapsed since military service, and evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran’s health and medical treatment during and after military service, as evidence of whether a condition was incurred in service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also notes that there is no mention of tinnitus in a March 1978 VA general examination report, which is dated less than a year after the Veteran’s separation from service. Accordingly, the Board finds that the Veteran’s tinnitus did not manifest in service or within a year of separation. In the June 2015 VA examination report, the examiner opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with his hearing loss. The examiner further opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure, explaining that there was no change in hearing over the course of the Veteran’s military career. In other words, the examiner’s opinion suggests that if the Veteran’s tinnitus were related to in-service noise exposure, such would have been reflected in changes in the Veteran’s hearing at the time. As discussed above regarding the Veteran’s claim for left ear hearing loss, the examiner found that the Veteran’s hearing was normal during service, with no significant threshold shifts. Moreover, because service connection is not established for hearing loss, the fact that the Veteran’s tinnitus is a symptom of his hearing loss, as found by the VA examiner, precludes a relationship to service. The June 2015 VA medical opinion is probative, as it represents the informed conclusion of a medical professional based on review of the Veteran’s medical history, and is supported by an explanation. It carries more weight than the Veteran’s lay opinion in support of this claim, for the same reasons discussed above regarding the hearing loss claim. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In sum, the preponderance of the evidence weighs against a link, or nexus, between the Veteran’s tinnitus and his in-service noise exposure. Therefore, the criteria for service connection on a direct basis are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). Because the Board finds that the Veteran’s tinnitus did not manifest until at least several years after service separation, service connection may not be awarded based on chronicity in service or a continuity of symptoms after service, or on a presumptive basis. See 38 C.F.R. § §§ 3.303(b); 3.307, 3.309. As the preponderance of the evidence weighs against the claim, it must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel