Citation Nr: 18157355 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-24 470 DATE: December 12, 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 bilateral hearing loss did not have onset in service, is not related to his active service, and did not manifest within one year after separation form active service. 2. The Veteran’s tinnitus did not have onset in service, is not related to his active service, and did not manifest within one year after separation active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to January 1971. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran filed a notice of disagreement (NOD) with the rating decision in November 2014. A statement of the case (SOC) was issued in April 2016 and the Veteran perfected his appeal in May 2016. The Veteran testified before the undersigned via videoconference at a hearing in January 2017. A transcript of the hearing is of record. The record was held open for 30 days for submission of additional evidence. No additional evidence has been received. The Veteran contends that his hearing loss and tinnitus were incurred during service or caused by exposure to loud noise during service. He has submitted lay statements from himself regarding his current hearing problems and his exposure to loud noises from weapons and aircraft during his active service. He has also submitted lay statements from his wife regarding his current hearing problems. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present 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’- the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309(a). The Veteran was afforded a VA examination in October 2014. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss consistent with VA regulation and tinnitus. As such, the first element of service connection has been met. Regarding the second element, the Veteran’s service treatment records (STRs) do not indicate the veteran complained of, or was diagnosed with, hearing loss or tinnitus during service. However, the Veteran has credibly reported being exposed to loud noise during service. The Veteran stated that he was exposed to loud noise during service as a military policeman from firing various weapons without hearing protection during training as well as from exposure to noise from missiles, artillery, and helicopters. As such, the Board accepts that the Veteran was exposed to loud noise in-service. Therefore, this case turns on whether the Veteran’s currently diagnosed hearing loss and tinnitus are related to his in-service noise exposure. The October 2014 VA examiner noted the Veteran’s history of military noise exposure and the Veteran’s statements that he had been experiencing hearing loss for a period of about ten years and tinnitus for an unknown duration of time. However, the VA examiner was of the opinion that the Veteran’s hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner noted that, although the Veteran’s history indicated military noise exposure and a family history of hearing loss, he had clinically normal hearing in-service, he had no history of ear infections or temporary hearing loss, and there was no documented shift in his hearing thresholds during active-duty. The examiner’s rationale stated that current scientific evidence asserts that permanent hearing loss related to acoustic exposure occurs immediately at the time of exposure and has not been found to present with a delayed or progressive onset. The examiner also noted that hearing loss from noise exposure creates a notch in hearing thresholds. There was no notch in the results of the Veteran’s audiometric examination. Moreover, the examiner stated that there was no continuity of care regarding the Veteran’s hearing, noting a 42-year gap between the Veteran’s separation from service and his first evaluation for hearing loss. As the Veteran’s STRs showed that he was discharged from service with stable and clinically normal hearing sensitivity, the examiner concluded that his current hearing loss is less likely than not caused by or related to service. The examiner also stated that it is less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. The examiner’s rationale stated that tinnitus is not a disease or illness by itself but a symptom of another condition, most often high frequency hearing loss. The examiner also stated that tinnitus occurs immediately, as opposed to years later, when caused by exposure to loud noises. Moreover, the examiner stated that there was no continuity of care regarding the Veteran’s hearing, noting a 42-year gap between the Veteran’s separation from service and his first audiological clinical evaluation. The Veteran’s STRs do not indicate any complaints of hearing loss or tinnitus while in-service. On his self-assessed Report of Medical History on separation the Veteran marked “no” when asked if he had ever had hearing loss. His examination on separation did not indicate any auditory problems. No tinnitus or hearing problems were noted by the Veteran or any physician on his Reports of Medical History from both entry and separation. The Veteran underwent a pure tone threshold testing at separation in January 1971. Audiology testing standards were set by the American Standards Association (ASA) until November 1, 1967. After that date, audiometric tests were conducted using International Standards Organization (ISO) or American National Standards Institute (ANSI) measurement. However, the October 1970 examination explicitly states that ASA units were used. Current VA regulations that define hearing loss for VA purposes are based on the dB measurement recorded in the ISO-ANSI units. 38 C.F.R. § 3.385 (2017). Accordingly, VA uses a system to convert ASA units to ISO-ANSI units that adds 15 dB to 500 Hz, 10 dB to 1000, 2000, and 3000 Hz, and 5 dB to 4000 Hz. As such, the Veteran’s converted October 1970 separation examination shows the following results, in dB: Hertz 500 1000 2000 3000 4000 Right Ear 5 0 0 0 -5 Left Ear 5 0 0 0 -5 The Board has considered a record submitted by the Veteran of a November 2014 examination by a non-VA audiologist, Dr. L.M., AuD. Dr. L.M. stated that the Veteran had a high probability of noise exposure in-service and that the Veteran denied noise exposure in his civilian life. The Veteran told Dr. L.M. that he did not know when his tinnitus started. In contrast to the VA examination, Dr. L.M. did not cite any medical studies and it is unknown whether she reviewed Veteran’s STRs. Relying on an audiometric examination and Veteran’s statements, Dr. L.M. concluded that it was at least as likely as not that the Veteran’s hearing loss was caused by or a result of an event in military service. At the January 2017 hearing, Veteran stated that he did not have ringing in his ears when he left the service and that it was first pointed out to him that he had hearing loss at a hearing test 10 years earlier. The Board has also considered the Veteran’s contention that his hearing loss and tinnitus are the result of acoustic trauma caused by noise exposure in-service. However, the Veteran, as a layperson, is not competent to give a medical opinion on the etiology, as the question of whether noise exposure many years earlier resulted in hearing loss and tinnitus years later is not a simple question. As such, the Veteran’s statement is not competent or probative evidence as to the etiology of his hearing loss or tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the October 2014 VA examiner opinion to be the most probative evidence of record as to whether the Veteran’s current tinnitus and hearing loss is related to his active service. The examiner’s rationale is logical, well-reasoned, and thorough. In contrast to Dr. L.M.’s opinion, the VA examiner cited to relevant medical studies and stated that she took into consideration the entire record, including the Veteran’s service and post-service treatment records as well as the Veteran’s historical accounts regarding his military history and in-service noise exposure. In sum, the Board finds the following facts from the record especially persuasive: the fact that the Veteran denied hearing loss his Report of Medical History upon separation; the fact that an audiometric exam indicated no hearing loss upon separation; and the fact that there was a 42-year gap between the Veteran’s separation from service and his first audiological clinical evaluation. (Continued on the next page)   The preponderance of evidence is against a finding that there is a nexus between the Veteran’s current tinnitus or hearing loss and his active service. In addition, the preponderance of evidence is against a finding that his tinnitus or hearing loss manifested itself to a degree of disability of ten percent or more within a year of discharge from service. Therefore, the claims of service connection for tinnitus and bilateral hearing loss must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107 (b), 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Garver, Law Clerk