Citation Nr: 18159031 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-17 558 DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran’s hearing loss and tinnitus did not have onset in service, are not related to his active service, and did not manifest within one year after separation from active service. CONCLUSIONS OF LAW 1. A hearing loss disability is not the result of disease or injury incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. Tinnitus is not the result of disease or injury incurred in or aggravated by service, and a sensorineural hearing loss may not be presumed to have been so incurred. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1958 to March 1962. Service Connection The Veteran contends that he is entitled to service connection for hearing loss. 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, 1131; 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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including sensorineural hearing loss and tinnitus (organic diseases of the nervous system), 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. In this case, there is no evidence of record concerning hearing loss or tinnitus in the years immediately following the Veteran’s service. Thus, service connection may not be presumed here based on manifestation within one year of discharge from active service. The one-year presumption for sensorineural hearing loss and tinnitus under 38 C.F.R. §§ 3.307 and 3.309 is therefore not helpful. Even if the presumptive paths for establishing service connection are not available for the Veteran’s disabilities, the claims could be granted if the three elements of direct service connection are shown by an equipoise standard of evidence. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. The Board concludes that, while the Veteran has current diagnoses of hearing loss and tinnitus, and evidence shows exposure to in-service noise occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses of hearing loss and tinnitus began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). During the March 2016 VA examination, the Veteran reported the onset of his hearing loss to be within the last 5 years and the onset of his tinnitus to be between 5 and 10 years ago. He stated he was exposed to hazardous noise as an avionics technician. After an examination and review of the claims file, the VA examiner opined that the Veteran’s hearing loss and tinnitus are not at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure. The recognized that the Veteran’s whispered voice tests are not indicative of presence/absence of hearing loss, but, used in conjunction with other information, it can indicate that hearing loss may have started after military service. Such is the case for the Veteran who reported his hearing loss began around 2011, 50 years after service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran reported that while in service he was a jet plane captain with unprotected exposure to loud noise. In civilian life, he worked for IBM in service and in sales of office equipment and insurance sales and servicing, which did not involve exposure to loud noise. While the Veteran believes his bilateral hearing loss and tinnitus are related to an in-service injury, event, or disease, including in-service noise exposure, he is not competent to provide a nexus opinion in this case. These issues are also medically complex, as they require knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner. The Board notes that the Court of Appeals for Veterans Claims 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). However, here, the Veteran has not asserted that he first noticed tinnitus in service or within a year of his separation from service. The first indication of tinnitus was five to 10 years prior to a March 2016 VA examination, which would make the onset as early as 2006, more than 40 years after his separation, and the Veteran stated without specificity that he had his tinnitus for "quite a while." The passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). (Continued on the next page)   However, the Board does not find that the preponderance of evidence supports a finding that the Veteran has had tinnitus or bilateral hearing loss since his separation from service, or within one year of his separation, or with any continuity during the time since his separation from service. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. In this case, as the preponderance of the evidence is against the Veteran’s claims for service connection for hearing loss and tinnitus, that doctrine is not applicable in the instant appeal and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel