Citation Nr: 18157823 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-63 817 DATE: December 14, 2018 ORDER Service connection for bilateral hearing loss and tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that bilateral hearing loss began within one year of active service or is otherwise etiologically related to service. 2. The preponderance of the evidence weighs against a finding that tinnitus began within one year of active service or is otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to June 1978. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Generally, 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). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system, which include sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran contends that he has bilateral hearing loss and tinnitus due to noise exposure in active service due to his occupational specialty of mortarman, as noted in his DD Form 214. Service treatment records (STRs) note reference audiograms were provided in September 1976, December 1976, and July 1977, with no noted hearing loss or complaints of tinnitus. See 38 C.F.R. § 3.385 (impaired hearing will be considered a disability for the purpose of applying the laws administered by VA when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.). A May 1978 separation examination recorded audiometric findings that also do not show a hearing loss disability for VA purposes in either ear. Bilateral sensorineural hearing loss and tinnitus were first diagnosed in an October 2014 VA examination report, with the Veteran reporting the presence of tinnitus for many years prior. As such, the Board finds the preponderance of the evidence weighs against a finding that either a hearing loss disability or tinnitus was present during service or in the year after separation from service and service connection for sensorineural hearing loss or tinnitus (organic diseases of the nervous system) may not be presumed. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). It is recognized that the Veteran has submitted lay evidence of observations that his hearing may have decreased around the time of his military service. While this could suggest a continuity of symptomatology since service, overall the evidence is against a finding of continuity of symptomatology of a hearing loss disability related to service. Instead, as discussed below, a VA examiner highlighted the lack of a hearing loss disability during service as verified by audiometric testing at the time and exposure to additional hazardous noise recreationally and occupationally after service. As the VA examiner essentially attributes the hearing loss to post-service noise exposure, rather than a continuation of a chronic disability since service, service connection cannot be granted on the basis of continuity of symptomatology. While service connection cannot be presumed under 38 C.F.R. § 3.309(a), service connection could still be warranted if the evidence reflects that a current hearing loss disability or tinnitus is related to service. With regard to bilateral hearing loss, the Board finds the preponderance of the evidence weighs against a finding that the disability is otherwise related to the Veteran’s active service. Here, the evidence first demonstrates a diagnosis of bilateral hearing loss around 2014. Regarding etiology of the hearing loss, the Board finds the October 2014 VA medical opinion finding bilateral hearing loss unrelated to active service to be highly probative. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The examiner noted review of the claims file and conceded that in-service noise exposure was highly probable due to the Veteran’s occupational specialty but noted that the Veteran’s entrance and separation examinations showed no threshold shifts in audiometric testing and explained that hearing, measured by pure tone thresholds, was within normal limits with no significant shift in hearing levels from induction to separation. The examiner concluded that the Veteran’s post-service noise exposure in his occupational and recreational environments and lack of threshold shift in service made it less likely as not that current bilateral hearing loss was related to military noise exposure. The Board acknowledges the Veteran’s contentions that his military occupational duties as a mortarman qualified as in-service acoustic trauma to warrant service connection for hearing loss as well as the other lay statements of record noting the Veteran’s decreased ability to hear and understand conversation during service and after. However, there is no indication that he or his family members have the training or experience required to determine the etiology of hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran and his family members are competent to report his observable symptoms, the diagnosis of bilateral hearing loss in accordance with 38 C.F.R. § 3.385 is not capable of lay observation and requires medical expertise to determine. With regard to tinnitus, the Board finds the preponderance of the evidence also weighs against a finding that tinnitus is otherwise related to the Veteran’s active service. Here, the record first indicates symptoms of tinnitus were reported in 2014 and the Board finds the October 2014 VA medical opinion finding tinnitus unrelated to active service to be highly probative. See Guerrieri, 4 Vet. App. at 470-71; see also Prejean, 13 Vet. App. at 448-49. The examiner noted review of the claims file and conceded that in-service noise exposure was highly probable but reported that tinnitus was less likely than not due to noise exposure in active service due to the finding that hearing loss was not caused by in-service noise exposure as outlined above. The examiner explained that tinnitus is often associated with noise exposure, specifically cumulative noise exposure, and hearing loss and concluded that the lack of presence of a threshold shift in active service and the Veteran’s post-service noise exposure in his occupational and recreational environments made it less likely as not that current bilateral hearing was related to military noise exposure. The Board acknowledges the Veteran’s contentions that his military occupational duties as a mortarman qualified as in-service acoustic trauma to warrant service connection for hearing loss as well as tinnitus, however, there is no indication that he has the training or experience required to determine its etiology. See Jandreau, 492 F.3d at 1377. Although the Veteran and his family members are competent to report his observable symptoms, there is no other evidence of record relating to the Veteran’s claim for tinnitus. (Continued on the next page) In summary, the preponderance of the evidence is against finding that bilateral hearing loss or tinnitus is related to service, and service connection may not be presumed. See 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. Thus, service connection is denied for the Veteran’s bilateral hearing loss and tinnitus claims. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Odya-Weis, Counsel