Citation Nr: 18155000 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-57 621 DATE: December 4, 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 current bilateral hearing loss was not incurred in, and is not otherwise related to, his military service, to include noise exposure. 2. The Veteran’s current tinnitus was not incurred in, and is not otherwise related to, his military service, to include noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 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, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1966 to August 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). For the purposes of applying the laws administered by VA, the VA considers impaired hearing a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Moreover, the Board recognizes that “the threshold for normal hearing is from 0 and 20 [decibels], and higher threshold levels indicate some degree of hearing loss.” Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection may be established for chronic diseases, to include sensorineural hearing loss and tinnitus, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). 1. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran contends that his bilateral hearing loss and tinnitus are related to his military service. The Veteran has current diagnoses of bilateral hearing loss and tinnitus. See September 2015 VA examination report. Objective testing confirms the hearing loss is considered a disability for VA purposes. 38 C.F.R. § 3.385. The Veteran’s military personnel records show service in the Republic of Vietnam from January 1967 to January 1968. The Veteran’s DD Form 214 shows his military occupational specialty (MOS) was a petroleum storage specialist. The Veteran contends in his November 2016 substantive appeal that his in-service noise exposure included weapon firing and helicopters while refueling them. The Board finds that the Veteran’s contentions are consistent with the circumstances, conditions, and hardships of his service. As such, military noise exposure is conceded. A review of his service treatment records (STRs) show no complaints, treatment, or diagnoses related to hearing loss or tinnitus. Puretone threshold testing conducted during the January 1966 entrance examination and May 1968 separation examination showed hearing within normal limits. Clinical evaluation of the ears on those examinations returned normal, as well. On the Report of Medical History completed in conjunction with the separation examination, the Veteran checked “no” to running ears; ear, nose or throat trouble; and hearing loss. VA treatment records show complaints of hearing loss and tinnitus. In a November 2017 VA treatment record, the Veteran reported post-service noise exposure with mowing the lawn, target shooting, and use of power tools, but he reported that he used hearing protection during such activities. The Veteran underwent a VA examination in September 2015. During the examination, the Veteran described his military noise exposure and denied occupational noise exposure. His recreational noise exposure with the use of hearing protection included target shooting. The examiner opined that the Veteran’s hearing loss and tinnitus were less likely than not related to his military service. With regards to the Veteran’s hearing loss, the examiner explained that the Veteran had normal hearing bilaterally during his pre-induction examination in January 1966 and during his separation examination in May 1968. The examiner further explained that there was not a permanent positive threshold shift greater than normal measurement variability in the left or right ear. The examiner also reasoned that considering the significant association between noise-induced hearing loss and tinnitus, and considering his etiological opinion regarding the Veteran’s hearing loss, the tinnitus also was less likely than not related to service. The Board finds these opinions, supported by a rationale based on an accurate medical history with clear conclusions and supporting data, highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In November 2015, the Veteran submitted a private opinion from Dr. C.L. who opined that the Veteran’s hearing loss is secondary to his military noise exposure and aging. However, no rationale was provided for Dr. A.P.’s opinion. As such, it is afforded no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves, supra. While the Veteran believes his bilateral hearing loss and tinnitus are related to his military noise exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board also acknowledges the article submitted by the Veteran which generally recommends that 15 decibels rather than 25 decibels be considered the upper limit of normal hearing sensitivity. The Board notes that the Court has held that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998). In short, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given veteran’s claim. In the present case, the article submitted by the Veteran falls into this general category. The Board notes that the article only provides general information and recommendations and does not speak to this Veteran’s particular circumstances. Therefore, the Board assigns the article no probative value in determining the nature and etiology of the Veteran’s hearing loss and tinnitus. Instead, the Board finds the September 2015 opinions more probative in determining the nature and etiology of the Veteran’s hearing loss and tinnitus. Based on the foregoing, the Board finds the most competent and probative evidence is not in favor of finding a causal nexus between the current bilateral hearing loss and tinnitus and service. The Board has considered whether service connection is warranted on a presumptive basis for chronic diseases. 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015) (sensorineural hearing loss is considered a chronic disease for the purposes of § 3.309(a)). The evidence does not show that the Veteran’s hearing loss or tinnitus manifested to a degree of 10 percent or more within a year of separation from service; therefore, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board has considered whether service connection is warranted based on a continuity of symptomatology framework. 38 C.F.R. § 3.303(b). To the extent that the Veteran has asserted that he experienced hearing loss and tinnitus in service and since, he is competent to relate experiencing a decrease in hearing acuity and tinnitus during service because they are readily observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); November 2012 VA Treatment Record and November 2016 Substantive Appeal. However, the Board finds that the evidence contemporaneous to his service is more reliable in regard to the state of his health. Specifically, the Veteran’s discharge examination noted that his ears were normal after a clinical evaluation, and puretone threshold testing showed hearing within normal limits. Additionally, the Veteran reported “no” to any ear trouble, including hearing loss, on his Report of Medical History at separation. Contemporaneous evidence as to his then-existing physical condition, such as his medical examination report at discharge (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Moreover, the competent and probative VA opinion outweighs any lay assertion in this case that any current hearing loss or tinnitus is related to military noise exposure. Thus, the continuity of symptomatology framework is not sufficient to grant this claim. While the Veteran is presumed to have been exposed to herbicide agents during his service in Vietnam, he cannot establish entitlement to service connection for hearing loss or tinnitus on a presumptive basis under 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e), because neither bilateral hearing loss nor tinnitus are one of the enumerated diseases. In sum, the evidence weighs against a finding that the Veteran’s hearing loss or tinnitus was incurred in, or is otherwise related to, active military service. As the preponderance of the evidence is against the claim under any applicable theory of service connection, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (Continued on the next page)   Service connection is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel