Citation Nr: 18156663 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-51 225 DATE: December 11, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence of record does not establish a nexus between an in-service event and the Veteran’s bilateral hearing loss disability. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303; 38 C.F.R. § 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303; 38 C.F.R. § 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1969 to February 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated February 2015, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri (hereinafter Agency of Original Jurisdiction (AOJ)). In its decision, the RO denied service connection for a bilateral hearing loss disability and tinnitus. The Veteran timely appealed. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular 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. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran claims entitlement to service connection for a bilateral hearing loss disability. Following a thorough review of the Veteran’s longitudinal medical records, the Board finds that he is not entitled to an award of service connection, as no nexus exists between the Veteran’s disability and his active duty service. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000ftz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. The Veteran was provided a VA audiological examination in February 2015, which showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 30 65 LEFT 40 30 20 70 75 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 in the left ear. As an initial matter, the Board finds that the Veteran has satisfied the first element of service connection, a current disability of bilateral hearing loss. A review of the Veteran’s VA audiological examination shows the Veteran has a current diagnosis of a bilateral hearing loss disability for VA purposes. See Audiological Examination dated February 2015. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. 38 U.S.C. §§ 1110, 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As to evidence of an in-service incurrence or aggravation of a disease or injury, the Board concedes that the Veteran was exposed to hazardous military noise consistent with his military occupation of a heavy vehicle driver and service in Vietnam. See Statement of the Case dated August 2016. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection, evidence of an in-service incurrence or aggravation of a disease or injury. 38 U.S.C. §§ 1110, 1131; Boyer, 210 F.3d at 1353. Turning next to evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the Board finds the weight of the medical evidence does not support a credible nexus. In reaching this determination, the Board finds the medical opinion of the February 2015 VA examiner to be probative and entitled to significant weight. To determine whether the required nexus existed, a VA examiner provided an audiological examination in February 2015. In the examiner’s opinion, it was less likely than not that the Veteran’s bilateral hearing loss was caused by or was the result of an in-service event. See VA Examination dated February 2015. The VA examiner also noted that the Veteran had normal hearing upon his military separation in 1971 and his record was void of any complaints of hearing loss. Id. Additionally, the Veteran denied any hearing loss on his separation questionnaire. Id. Another VA audiological examination was conducted in August 2016 to evaluate the Veteran’s bilateral hearing loss; however, the examiner was unable to provide an opinion regarding the etiology of the Veteran’s hearing loss because the Veteran refused to comply. See VA Examination dated August 2016. Nonetheless, the Board finds the VA examiner’s opinion of the February 2015 audiological examination to be sufficient for its purposes. Finally, the Board has considered the Veteran’s lay reports of symptoms, but finds these statements do not establish proof of any causal nexus. While the Veteran is competent as a lay person to report certain symptoms, his reports of hearing loss and similar symptoms, although acknowledged, are outweighed by the clinical and diagnostic evidence of record. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. The Board finds that the question of whether a nexus exists between the Veteran’s active duty service and his current bilateral hearing loss is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Hence, the Veteran’s opinion of a causal relationship is not competent evidence and is entitled to low probative weight. Moreover, the Board finds the contemporaneous medical evidence of record to be more probative as to the Veteran’s bilateral hearing loss. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). As noted above, a thorough review of the Veteran’s medical records does not show any treatment for, or diagnosis of, bilateral hearing loss until years following the Veteran’s separation from active duty service. Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes that the Veteran has been diagnosed with right ear hearing loss during the pendency of his appeal. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran additionally seeks entitlement to service connection for tinnitus. Throughout his appeal, the Veteran has alleged constant bilateral tinnitus which began right after he got out of service. See VA Examination dated September 2014. The Veteran also reports that he has noticed his tinnitus since he was in the military. See VA Examination dated February 2015. As an initial matter, the Board observes that the Veteran has a current diagnosis for tinnitus. Id. Additionally, the Board acknowledges that the Veteran was exposed to high frequency and loud noises during his military service. However, neither exposure to noise in the military, nor a currently diagnosed disability, alone are grounds for service connection in all cases. Rather, the military noise exposure must cause the tinnitus. This connection can be established by either medical opinion of record, or by credible evidence that establishes continuity of symptomatology. The Veteran may also establish continuity of symptomatology by his own lay testimony. The Court has held that lay evidence is competent and sufficient to establish a diagnosis of a condition when: (1) a lay person is competent to identify the medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, lay evidence may suffice to establish the manifestations of a chronic condition during service, or within a presumptive period; and, when a condition is not chronic and there is no medical evidence of a causal nexus, lay testimony or medical evidence may establish continuity of symptomatology. See id.; Hickson v. West, 12 Vet. App. 247, 253 (1999). Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). In this case, the record includes the Veteran’s descriptions of constant ringing in his ears since his separation from military service. See e.g. VA Examination dated September 2014; VA Examination dated February 2015. Throughout the evidence of record the Veteran has consistently related his current tinnitus to his exposure to acoustic trauma while in service, and the record does not contain any suggestion of an alternative, conflicting date of symptom onset. As the Veteran’s testimony has been consistent, the Board finds no reason to doubt the veracity or credibility of his testimony. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, the Board finds that the Veteran’s statements are credible to establish that his symptoms of tinnitus began while he was still in active duty military service and have continued to the present day. To determine whether the required nexus exists, a VA audiologist provided an audiological examination in February 2015. In the audiologist’s opinion, it was less likely than not that the Veteran’s tinnitus was caused by military noise exposure. See VA Examination Report dated February 2015. The audiologist emphasized normal auditory thresholds at the time of the Veteran’s separation examination. Id. The examiner also stated that the Veteran did not report any complaints of tinnitus in his records and denied any ear trouble on his separation questionnaire. Id. Additionally, the Veteran’s only complaints of ear trouble were with regards to drainage and soreness due to an ear infection. Id. In the case of tinnitus, the examiner’s opinion is less persuasive than it is for hearing loss. In the Board’s view, the absence of complaints of tinnitus in the service treatment records is insignificant. In his February 2015 VA examination, the examiner stated that the Veteran reported constant tinnitus for both ears. The Veteran described his symptoms as ringing and reported that he noticed his tinnitus since he was in the military. See VA Examination dated February 2015. Moreover, the Veteran himself is competent to testify that he experienced tinnitus in service. See Charles, 16 Vet. App. at 374. Under these circumstances, it is at least as likely as not that the Veteran’s current tinnitus had its onset in service. By law, the doubt resulting from this relative equipoise in the evidence is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise, 26 Vet. App. at 531. For these reasons, the Board will grant service connection for tinnitus. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Bristor