Citation Nr: 18155655 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 12-18 359 DATE: December 4, 2018 ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The probative, competent evidence of record does not demonstrate that the Veteran’s bilateral hearing loss disability is connected to service. 2. The probative, competent evidence of record does not demonstrate that the Veteran’s tinnitus is connected to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service in the Air Force from October 1976 to May 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded this matter on August 2017 to obtain all relevant audiology treatment records and a medical opinion explicitly addressing the likelihood of service-connection. In issuing this decision the Board has examined all evidence, to include all lay statements; medical records and opinions; and the procedural posture of the claim. The credibility and probative value of each statement has been weighed, and the Board has meticulously applied all applicable legal authority to the issues and relevant and material evidence present within the record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has obtained the Veteran’s VA treatment records, but the Veteran has asserted in written statements that he has not sought medical treatment for the issues on appeal. Service Connection To establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as organic diseases of the nervous system, which include sensorineural hearing loss and tinnitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Service connection for bilateral hearing loss The Veteran asserts that his hearing loss stems from his explosive and arms exposure between 1976 and 1978. His occupational specialties during this time included small arms specialist, marksman instructor, and gunsmith. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. For VA purposes, a Veteran’s impaired hearing will be considered a disability when either (1) the auditory threshold in any of the frequencies–500Hz, 1000Hz, 2000Hz, 3000Hz, 4000Hz–is 40 decibels or greater; (2) when the auditory threshold of at least three of the frequencies are 26 decibels or greater; or (3) speech recognition is less than 94 percent. 38 C.F.R. § 3.385. The Board concludes that, while the Veteran has a current disability of bilateral hearing loss that meets the minimum standard under VA regulations and that the evidence suggests the Veteran was exposed to hazardous noise during service, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with bilateral hearing loss until 2009, decades after his separation from service. In addition, a September 2010 prison treatment record suggested that the Veteran’s hearing loss was non-organic in nature. Nevertheless, even if the Veteran has hearing loss disability, the Board finds that it is not related to his service. The Veteran and other lay witnesses have reported that the Veteran experienced hearing loss upon returning from service. The Veteran is competent to report his symptoms and their history, and other lay persons are also competent to report their observation of the Veteran’s manifestations. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). However, the Board finds that these recent assertions are not credible or reliable in light of other, more probative, evidence of record. First, the Veteran’s audiological test at separation revealed that he had normal hearing. In addition, on his May 1978 report of medical history completed at separation from service, the Veteran indicated that he had no history of hearing loss. This directly contradicts his September 2009 claim, in which he indicated that his hearing loss began in May 1978. At that time, the Veteran reported a positive history of another disorder, but specifically denied any history of hearing loss. This document is a signed, sworn statement, completely by the Veteran contemporaneous with his separation. As such, it is given significant probative weight with regard to whether the Veteran was experiencing hearing loss at that time. Furthermore, it is more probative than the Veteran’s September 2009 claim indicating that his hearing loss began at that time. Therefore, the Board finds that continuity of symptomatology with regard to the Veteran’s hearing loss is not shown. The Board will now turn to whether the Veteran’s hearing loss is otherwise related to his service. Following the Board’s initial decision to remand this issue in March 2015, an audiological examination was administered to obtain a medical opinion from a VA audiologist regarding the cause of the Veteran’s bilateral hearing loss disability and its likelihood of service connection; exemplifying the Board’s previous efforts to satisfy its the duty to assist. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995). This 2015 medical examination stated that the Veteran did not have a standard threshold shift in either ear when comparing the Veteran’s enlistment and exit hearing tests. The medical examiner expanded on this statement by describing the patterns of hearing impairment typically associated with exposure to hazardous noise. Specifically, the examiner explained that “hearing loss abruptly reaches a maximum between 3000 and 6000Hz, followed by a return towards normal hearing at still higher frequencies.” This phenomenon is commonly referred to as “notching,” and the examiner concluded that the Veteran’s hearing impairment did not conform to this pattern, which is the commonly accepted method of determining the source of bilateral hearing loss. While this 2015 audiological test and medical opinion provided extensive information about the Veteran’s current bilateral hearing loss disability, the Board remanded this issue a second time in August 2017 to have absolute clarity as to whether the hearing loss could be related to the Veteran’s active service. The October 2017 VA examiner acknowledged that there need not be an in-service hearing loss, which no in-service complaints exist in this case, to have a successful service-connected bilateral hearing loss claim, provided there is a “medically sound basis for attributing that disability to service.” Despite these considerations, the examiner reiterated her previous medical opinion that the bilateral hearing loss is less likely than not to be service connected. The medical examiner provided the rationale that the Veteran did not have a standard threshold shift for either ear when comparing enlistment and exit hearing tests. Furthermore, the examiner stated that none of the audiological tests administered between 2009 and 2017 indicate “notching” in hearing ranges associated with hazardous noise damage, going further to note that the Veteran’s best hearing is in the range associated with hearing loss from hazardous noise. These results, when interpreted alongside the fluctuations in hearing impairment across examinations, suggest an alternate rationale for the Veteran’s hearing loss than being connected to his service history. This conclusion is further corroborated when viewing the 2015 and 2017 VA examinations together. The Veteran contends that during his separation physical, which included an audiogram, a hearing loss in the ranges of 3000Hz, 4000Hz, and 6000Hz can be seen. He also states that hearing loss need not be immediate, but can manifest over time. The medical examiner, in addressing these concerns, presents contrary medical opinions and supporting medical journals. Weighing the medical examiner’s statements against that of the Veteran and the provided lay statements, the Board finds the medical examiner’s interpretation and rationale for the Veteran’s hearing degradation to be more persuasive. Additionally, as already stated above, the Veteran’s separation audiogram indicates no hearing loss based on VA guidelines and his separation paperwork indicates that he had affirmatively marked “no” to the hearing loss questionnaire. This fact coupled with the audiologist’s statements regarding notching, fluctuations in hearing loss between examinations, and delayed onset of bilateral hearing loss require the Board to rely on the medical opinions and deny service connection. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this instance. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Service Connection for Tinnitus The Veteran contends that he is entitled to service connection for tinnitus. The Veteran first reported ringing in his ear during a 2009 VA examination, which resulted in a diagnosis of his current tinnitus disability. The Veteran’s statements with regard to when his tinnitus began are contradictory. On his September 2009 claim, he indicated that it began in June 2009. Subsequent statements provided by the Veteran and his friend suggest he has had it since service. The Veteran is certainly competent to report the symptoms of his tinnitus and their history, and his friend is certainly competent to report what the Veteran has told him. However, the Veteran also denied any history of ear trouble when he separated in May 1978. As noted above, he positively reported a history of another disorder at this time, therefore, his affirmative rejection of any ear problems at this time is highly probative evidence with regard to whether he has had tinnitus since separation. As such, the Board finds that the more recent statements of the Veteran and his friend are not credible or reliable, and the contemporaneous evidence is more probative. Therefore, tinnitus was not present at separation or since service. With regard to whether tinnitus, even if not present at separation, could be related to service, the Board will rely on the comprehensive, adequate, and expert opinions provided in June 2015 and October 2017. The VA examiner’s opinion is more probative than the Veteran’s because it is based on an accurate medical history and provides an extensive explanation that contains clear conclusions and supporting data. In addition, the VA examiner has specialized training in the area of audiological evaluations that the Veteran is not shown to have. While diagnosis of tinnitus is largely dependent on the Veteran’s attestation to possessing the symptoms, there must still be a “medically sound basis for attributing that disability to service” to satisfy the nexus element of service connection. Given the weight afforded to the VA examiner’s professional opinion in excess of the weight given to the Veteran’s opinion, the Board must deny service connection for the tinnitus. (Continued on the next page)   In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this instance. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lherault, Associate Counsel