Citation Nr: 18156311 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 17-11 082 DATE: December 7, 2018 ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for residuals of an injury to the ring finger of the left hand. FINDINGS OF FACT 1. The Veteran’s 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. 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. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1955 to June 1957. At the outset, the Board notes that the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, attempted to secure service treatment records (STRs). However, it has been determined that such records cannot be located. When service records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. In this case, the Veteran’s STRs appear to have been destroyed in the July 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. Under these circumstances, the Court has held that VA has a heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the veteran’s medical records have been destroyed.” Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases, such as, hearing loss disability 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. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. Issues 1-2. The Veteran contends his hearing disorders, hearing loss and tinnitus, are caused by or the result of noise trauma in service. The Board concludes that, while the Veteran has hearing loss disability as defined by VA at 38 C.F.R. § 3.385 and he has tinnitus, which are chronic diseases under 38 C.F.R. § 3.309(a), neither condition was chronic in service or manifested to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The Board further concludes that the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing disorders and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Relevant treatment records show the Veteran was not diagnosed with hearing loss or tinnitus until many decades after his separation from service and decadesoutside of the applicable presumptive period. Furthermore, a January 2016 VA audiological opinion reflects that hearing loss was less likely than not related to the Veteran’s active service, including any noise trauma associated with his military occupational specialty (MOS) as a generator operator because the Veteran had not noticed any hearing loss until he was about age 50 or a little younger—but long after active service. Also, the Veteran denied recurrent tinnitus and, thus, the examiner reasoned that it was less likely than not related to in-service noise exposure. While the Veteran is competent to report having experienced symptoms of hearing loss and tinnitus since service or during the presumptive period, he has not done so. In fact, he reported on January 2016 VA examination that his hearing loss began around the time he was 50 years old (long after active service and the applicable presumptive period) and he denied recurrent tinnitus. Thus, hearing loss and tinnitus did not have their onset in service. Additionally, the Veteran is not competent to link his post service onset hearing loss and tinnitus to noise trauma in service. The issue is medically complex, as it requires knowledge of ear and hearing mechanisms, as well as diseases processes effecting the auditory system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran’s statements have diminished probative value. The Board assigns greater probative value to the Veteran’s January 2016 report of onset of hearing loss symptoms decades after service along with his denial of recurrent tinnitus. The Board further assigns greater probative value to the January 2016 VA medical opinion as this was prepared by a skilled, neutral medical professional after examining the Veteran and considering his medical history. The opinion is further supported by a medical rationale. The Veteran has not presented a favorable medical opinion to weigh in this matter or identified any evidence to aid in substantiating his claims. It is noted that the private audiological record dated in 2012 does not address the date of onset of hearing problems or the etiology of any shown problems; hence, it has no probative value in these matters. On balance, the weight of the evidence is against the claims. Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 3. Entitlement to service connection for residuals of an injury to the left ring finger is remanded. The Veteran states that he sustained an injury to his left ring finger on the left hand while on active duty. Specifically, he recalls that the end of his left ring finger was cut off while shutting a heavy metal door in his work area as he was about to take a break. Additionally, he states that he was treated at a VA hospital for this injury. The Board finds that the Veteran is competent to report his in-service injury notwithstanding the absence of STRs. Given the available evidence, the Board believes that VA’s duty to assist requires that VA obtain an examination and opinion to address the question of whether any currently shown left ring finger disability is as likely as not related to the in-service injury described by the Veteran. McClendon v. Nicholson, 20 Vet App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left ring finger condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the history as provided by the Veteran. The Veteran’s history of injury should be accepted as truthful unless otherwise shown by clinical evaluation or other evidence, which must be identified in the report and explained. A complete rationale for the medical opinion is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Sangster, Counsel