Citation Nr: 18159655 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 13-31 726 DATE: December 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for stuttering is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss disability 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 bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to July 1970 during the Vietnam Era. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, IL. A Notice of Disagreement was submitted in January 2012; a Statement of the Case was issued in September 2013; and a VA Form 9 was received in October 2013. Veteran withdrew his request for a Board hearing in November 2013. 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; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A hearing loss disability is defined for VA compensation purposes regarding 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 to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (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. VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For chronic diseases shown in service that 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). 1. Entitlement to Service Connection for Bilateral Hearing Loss Disability The Veteran has asserted that his current diagnosis of bilateral sensorineural hearing loss is related to noise exposure during service. The Veteran’s service treatment records do not contain any complaints, treatment, or findings related to hearing loss. In fact, the Veteran’s hearing was within normal limits during audiologic examinations conducted at entrance and separation from service, as shown by the service treatment records as well as the August 2011 VA examiner’s statement. Despite the Veteran’s normal hearing during service, his DD-214 reflects that his military occupational specialty in the Army was as a firefighter and Hercules Missile Crewman. As such, the Board finds the Veteran’s reports of exposure to noise while performing his duties during service is consistent with the circumstances of his service. Moreover, the Veteran is competent to testify as to his in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Thus, the Veteran’s in-service noise exposure is demonstrated. The August 2011 addendum to the January 2011 VA examination report contains a diagnosis of bilateral hearing loss and establishes that the Veteran has a bilateral hearing disability within VA standards. See 38 C.F.R. § 3.385. Therefore, the remaining question is whether there is a nexus, or link, between the Veteran’s current hearing loss and his acknowledged noise exposure during service. After examining the Veteran and reviewing the claims file, the audiologist who conducted the January 2011 VA examination opined in the August 2011 addendum that the Veteran’s hearing loss is not related to his military service, noting that the Veteran demonstrated normal bilateral hearing throughout service, including at separation from service. The VA examiner also noted the Veteran did not report hearing loss when he sought medical attention for his ears during service. The Veteran’s medical reports relating to his ears during service only demonstrated that his ears were packed with cerumen. Before rendering her opinion, the VA examiner considered the Veteran’s history of noise exposure during service and post-service. She noted the Veteran reported he was within ten feet of a hand grenade explosion during basic training, and he felt “deaf” for a few days, but his hearing did return. The Veteran also reported occupational noise exposure post-service from 1973-1988 from working as a truck driver. The VA examiner also considered that the Veteran was diagnosed with Otosclerosis of the right and left ears in 1985, which resulted in a “right stapedectomy” in 1985, and a “left stapedectomy” in 1992. The Veteran reports in his statement dated March 28, 2017 the types of acoustic trauma he was exposed to during service. The Veteran describes similar acoustic exposure as noted by the 2011 VA examiner. The Veteran states he was seen several times during service by military doctors for hearing loss and ringing in his ears. However, the Veteran’s claims file only reflects the Veteran’s medical visits to have cerumen removed from his ears, with no mention of hearing loss or ringing of the ears. The Veteran states that he did not receive a hearing exam at the time of his separation from service. However, the Veteran’s claims file contains a June 1970 separation examination, which includes a normal audiometric examination, and the Veteran’s own report that his ears were normal. Because the Veteran’s statements regarding the condition of his ears over time have been somewhat inconsistent, his recent lay statements will be given minimal probative weight. In addition, the contemporaneous service evidence is more probative than the Veteran’s recent assertions. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for hearing loss. While the evidence shows the Veteran has current bilateral hearing loss for VA purposes, the most probative evidence of record demonstrates that his current hearing disability is not related to his service. The August 2011 VA addendum opinion is afforded great probative weight as it has a clear conclusion and supporting data, as well as a reasoned medical explanation connecting the two. Notably, there is no opposing medical opinion is of record, and the VA examiner’s opinion outweighs the Veteran’s assertions connecting his hearing loss to military noise exposure. While the Veteran believes his current hearing loss is related to his military service, he, as a lay person, is not competent to attribute his hearing loss to any instance of his service, as he has not demonstrated that he is an expert in determining the etiology of hearing loss. Indeed, the etiology of hearing loss is a complex question that requires medical expertise that involves the impact of acoustic trauma and loud noises on the auditory functioning of the ear. In this case, a trained professional examined the Veteran, reviewed the record, and opined that the Veteran’s current hearing loss is not likely related to his in-service noise exposure. Therefore, the August 2011 VA opinion is considered more probative than the lay assertions of record. Moreover, the clinical evidence of record fails to show complaints of hearing loss until Veteran’s first stapedectomy in 1985, almost 15 years after service discharge. Further, Veteran’s private doctor reported in October 1992 that the Veteran maintains good hearing in his right ear after his 1985 stapedectomy, and the Veteran now wants to have a stapedectomy for his left ear. Crucially, the Veteran’s hearing impairment was not diagnosed until January 2011. The Board recognizes the Veteran is competent to provide evidence regarding the lay observable symptoms of his hearing impairment; however, for VA compensation purposes, audiometric testing conducted by a state-licensed audiologist is required to diagnose hearing impairment. As a result, the Board must rely on the medical evidence of record in that regard. Consequently, presumptive service connection, to include based on continuity of symptomatology, for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d at 1338-40. For the reasons explained above, the Board finds the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss is causally or etiologically related to any disease, injury, or incident in service. Additionally, hearing loss did not manifest to a compensable degree within one year of the Veteran’s discharge from service. Therefore, service connection for bilateral hearing loss is not warranted, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to Service Connection for Tinnitus The Veteran contends his tinnitus manifested in service and has continued since separation. The evidence shows a current diagnosis of tinnitus. The Veteran contends his tinnitus resulted from exposure to loud noise during basic training and his service duties as a firefighter and Hercules Missile Crewmember. He stated he was subject to rifle noise, helicopter noise and grenade explosions. The Board has no reason to suspect that the Veteran was not exposed to loud noises in service, therefore noise exposure is conceded. The issue that remains disputed is whether the Veteran’s tinnitus had its onset in service, manifested to a compensable degree within one year of separation, or is otherwise related to service. The preponderance of the evidence is against the claim. The Veteran’s service treatment records indicate that he was exposed to acoustic trauma but are negative for complaints of or treatment for tinnitus. The Veteran’s medical reports related to his ears during service only demonstrated that his ears were packed with cerumen, and he did not complain of hearing loss or tinnitus. After examining the Veteran and reviewing the claims file, the audiologist who conducted the January 2011 VA examination opined in the August 2011 addendum that the Veteran’s tinnitus is less likely than not related to his military service, noting that the Veteran did not report hearing loss or tinnitus when he sought medical attention for his ears during service. The VA examiner further opined that it is as likely as not the Veteran’s tinnitus is a symptom associated with his hearing loss, which the examiner concluded was not likely incurred during service. Turning to presumptive service connection, the Board concludes that while the Veteran’s tinnitus is a chronic disease under 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker, 708 F.3d at 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Indeed, the first indication of tinnitus is more than a year after his separation from service when he reported ringing in the right ear in July 1985, and thus outside of the applicable one-year presumptive period. The Veteran states he was seen several times during service by military doctors for hearing loss and ringing in his ears during service. However, the Veteran’s claim file only reflects the Veteran’s medical visits to have cerumen removed from his ears, with no mention of hearing loss or ringing of the ears. The Veteran states that he did not receive a hearing exam at the time of his separation from service. However, the Veteran’s claim file contains a June 1970 separation examination, which includes a normal audiometric examination. Also, the Veteran reported that his ears were normal at his separation examination in June 1970. Because the Veteran’s statements regarding the condition of his ears over time have been inconsistent, his lay statements will be given minimal probative weight. While the Veteran is competent to report experiencing symptoms of ringing in his ears in service and consistently since separation, the Board finds the Veteran’s reports of continuity of symptomatology not consistent with his reports in contemporaneous treatment records, which show that he did not report experiencing tinnitus in service. The Veteran also reported that his ears were normal at separation from service in 1970. Service connection for tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus 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). The January 2011 VA examiner opined in the August 2011 addendum that the Veteran’s tinnitus was not likely causally related to service, but rather was a symptom of Veteran’s hearing loss which she found was also not likely causally related to service. Accordingly, secondary service connection for the Veteran’s tinnitus is not appropriate for Veteran’s tinnitus because it was caused by his hearing loss, which is not an already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The August 2011 VA opinion is afforded great probative weight as it has a clear conclusion based on an in-person examination and review of all relevant records, as well as a reasoned medical explanation connecting the two. Notably, there is no opposing medical opinion of record, and the VA opinion outweighs the Veteran’s assertions connecting his tinnitus to military noise exposure. Considering these findings, the Board concludes that service connection for tinnitus not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REMANDED ISSUE Entitlement to Service Connection for Stuttering is Remanded. The Veteran is seeking entitlement to service connection for a stuttering disability on a secondary basis to his hearing loss. However, as described above, since service connection for Veteran’s hearing loss is being denied, there is no basis for a grant of secondary service connection for Veteran’s stuttering disability. Therefore, the Board will consider the Veteran’s claim for a stuttering disability on a direct service connection basis. Veteran’s service treatment records show that the Veteran checked “yes” on his entrance examination to the question, “Have you ever had or have you now stuttered or stammered.” The Veteran also underwent a mental health consultation in service in April 1970, where the examiner noted that the Veteran’s speech pattern revealed a slight stammer. Finally, the Veteran reported a history of stammering or stuttering at his exit examination in June 1970. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). However, the entrance examination physician did not document or comment on whether the Veteran had a current stuttering disability. While the Veteran reported a history of stuttering or stammering, the Board finds that a speech disability was not noted at entry into service and, thus, the Veteran is presumed to have been in sound condition at entrance into service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that only such conditions as are recorded in entrance examination reports are to be considered as “noted”); see also 38 C.F.R. § 3.304 (b). Therefore, the Veteran is presumed sound at entrance, and clear and unmistakable evidence of a preexisting stuttering disability is required to rebut the presumption of soundness. 38 U.S.C. § 1111. VA’s duty to assist generally includes the duty to provide a VA examination when the evidence shows (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159 (c)(4) (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran has stated that he suffers from a current stuttering disability. A veteran is competent to describe symptoms that he can perceive using his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno, 6 Vet. App. at 469-71. Therefore, there is competent and credible evidence of record showing the Veteran has a current disability. The Veteran’s mental health examination during service shows a notation of a slight stutter, and there is some indication that Veteran’s current disability may be related to his in-service stuttering disability. Finally, there is insufficient competent medical evidence on file to make a decision on Veteran’s stuttering disability claim because it was not addressed in his prior VA examination, or elsewhere in the record. Considering the evidence described above, a new VA examination is necessary to determine what, if any, stuttering condition the Veteran has, and whether any potentially diagnosed condition is etiologically related to active service. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed stuttering. The claims file should be reviewed. The examiner is requested to address the following questions: (a.) The examiner should state whether any diagnosed stuttering disorder pre-existed service. (b.) If the examiner determines that the diagnosed stuttering disorder pre-existed service, please state whether it was aggravated or increased in severity during service. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. St. Laurent