Citation Nr: 18159892 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-57 064 DATE: December 20, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus of the left ear is denied. FINDINGS OF FACT 1. The Veteran does not have a right ear hearing loss disability for VA purposes. 2. The Veteran's current left ear hearing loss was first shown many years after discharge from service and is not otherwise shown to be related to military service. 3. Tinnitus of the left ear did not manifest during active service or during the year following separation from active service, and tinnitus is not attributable to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 2. The criteria for service connection for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 3. The criteria for service connection for tinnitus have not all been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2015 rating decision, which denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and service connection for tinnitus of the left ear. He perfected a timely appeal to that decision. On May 23, 2017, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. Service Connection 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 (2012); 38 C.F.R. § 3.303 (a) (2017). "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). Service connection for certain chronic diseases, including an organic disease of the nervous system like sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). In addition to the above criteria, service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385 (2017), which provides that service connection for impaired hearing shall be established when hearing status meets certain pure tone and speech recognition criteria. Hearing loss status will be considered a disability for the purposes of service connection when the auditory thresholds in 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 when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id. see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for right ear hearing loss The Veteran is seeking service connection for bilateral hearing loss which he believes developed because of excessive noise exposure during service. A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). 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, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. After careful review of the evidentiary record, the Board concludes that the Veteran does not have a current right ear hearing loss disability, for VA purposes, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). At a January 2015 DBQ audiological examination, pure tone thresholds in the right ear were 5, 5, 10, 10, and 10 dB at frequencies of 500, 1000, 2000, 3000, and 4000 Hz. Speech recognition was 100 percent. As the auditory threshold at any frequency was not 40 dB or greater, or 26 dB or greater in three frequencies, and the speech recognition score was not less than 94 percent, the Veteran does not have a right ear hearing disability. See 38 C.F.R. § 3.385. There are no other audiological examinations of record that demonstrate a right ear hearing loss disability. Subsequent VA treatment records describe the Veteran’s hearing as normal. In fact, a May 2016 audiology consult note indicated that the Veteran was seen for hearing recheck; it was noted that the right ear showed hearing within normal limits from 250 to 6000 Hertz levels. As such, for VA purposes the Veteran does not have a current right ear hearing loss disability for VA purposes. While the Veteran believes he currently has a right ear hearing loss disability for VA purposes, he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized knowledge and experience. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating the need for supporting medical evidence in claim for rheumatic heart disease). There is no indication that the Veteran has the medical training to self-test his hearing for pure tone thresholds or Maryland CNC speech recognition results that would reveal hearing loss for VA purposes under 38 C.F.R. § 3.385. As such, the Board finds that the Veteran's assertion of hearing loss disability due to in-service noise exposure is not persuasive. Absent a currently diagnosed disability as defined by 38 C.F.R. § 3.385, service connection is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In summary, the evidence fails to establish that the Veteran has a right ear hearing loss disability as defined in 38 C.F.R. § 3.385 for VA compensation purposes. In the absence of the claimed disability, service connection may not be granted. See Brammer, supra; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection cannot be granted if the claimed disability does not exist). As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, service connection for right ear hearing loss must be denied. 2. Entitlement to service connection for left ear hearing loss The Veteran contends that he developed hearing loss as a result of his exposure to hazardous noise while service in the military. The Veteran also reported being struck on the left side of the body during service, which he believes may have also caused his hearing loss. The results from the January 2015 DBQ audiological examinations establish that the Veteran has a current left ear hearing loss disability that satisfies the criteria under 38 C.F.R. § 3.385. As such, the current disability element for service connection is met. In this case, the dispositive issue is whether there is a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this regard, the Board notes that the Veteran entered active duty in June 1967. His DD Form 214 indicates that his military occupational specialty was as a light weapons infantryman; he was awarded the Marksman badge, the Vietnam Service Medal w/ 2 Bronze Service Stars, the Republic of Vietnam Campaign Medal, the Combat Infantryman Badge, and the Purple Heart. The Board finds it likely that he was exposed to loud noise during service. Significantly, the service treatment records (STRs) show that the Veteran underwent audiometric testing in August 1965, June 1967, and January 1969. 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, as it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standards for evaluating hearing loss were not changed to require ISO-ANSI units until September 9, 1975. 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. Accordingly, the 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. In view of the fact the Veteran's August 1965 audiometric examination was likely conducted under ASA testing standards, the Board has applied the conversion standard to these audiometric results. Regarding the June 1967 and January 1969 audiometric examinations, it is unclear whether such thresholds were recorded using ASA units or ISO-ANSI units. The Board has therefore assumed that the June 1967 and January 1969 examinations were recorded in ASA units and has converted them to ISO-ANSI units, which is more favorable to the Veteran, as is proper. Significantly, the induction examination of August 1965 revealed pure tone thresholds of 5(20), 0 (10), 0 (10), 5 (15), and 0 (5) decibels in the left ear at the 500, 1000, 2000, 3000, and 4000 Hertz levels. Clinical evaluation of the left ear was normal. A subsequent audiometric examination, dated in June 1967, revealed pure tone thresholds of -5 (10), -10 (0), -10 (0), and -5(0) decibels in the left ear at the 500, 1000, 2000, and 4000 Hertz levels. At the time of the separation examination in January 1969, audiometric examination revealed pure tone thresholds of 5(20), 10(20), 0(10), and 5(10) decibels in the left ear at the 500, 1000, 2000, and 4000 Hertz levels. Clinical evaluation of the ears was normal. Thus, a review of the Veteran's induction and separation audiological examinations fails to establish the presence of a left ear hearing loss disability under the clear requirement of 38 C.F.R. § 3.385. Post-service medical records were silent with respect to any complaints or clinical findings of hearing loss until October 2011 when the Veteran was seen for hearing evaluation. It was noted that the Veteran requested an examination as he was concerned about his tinnitus in his left ear; he reported that it began about a year ago but has progressed in intensity. He reported being injured in combat when a shrapnel struck him on the left side of the head. The diagnosis was hearing impaired/tinnitus. The Veteran was afforded a DBQ audiological evaluation in January 2015. The examiner reported that pure tone thresholds revealed sensorineural hearing loss in the left ear in the frequency range of 6000 or higher; however, speech recognition was 92 percent. The examiner opined that the left ear hearing loss is not at least as likely as not caused by or a result of an event in service. The examiner explained that the service records show no significant decrease shift in hearing from entrance to exit examinations. As summarized above, the first evidence of left ear hearing loss was not shown in service or within one year of service separation. In fact, the first objective clinical documentation of left ear hearing loss is dated in October 2011, approximately 36 years after service separation. The Board must note the lapse of many years between the Veteran's separation from service and the first diagnosis of left ear hearing loss. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). As such, service connection for hearing loss cannot be granted on a presumptive basis. 38 C.F.R. § 3.303. However, service connection for hearing loss can still be established if medical evidence shows that a current impaired hearing disability is actually due to incidents during service. Hensley v. Brown, 5 Vet. App. 155 (1993). In light of the above, the Board finds that the most probative evidence of record shows that the Veteran's left ear hearing disability is not due to an incident in service. The only medical opinion regarding a nexus to military service is the negative opinion provided by the DBQ examiner. That opinion is clear and well supported by rationale. The Board acknowledges the Veteran's assertions that he was suffered an injury to the left side of the head in service, which he claims caused his hearing loss. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. §§ 3.303 (a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); also see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, relating noise exposure or trauma in service to a current disability, especially with a lengthy gap in the medical record and a delay in a noticeable loss, requires opinion evidence from experts with medical training, and is not subject to lay assessment. The Board finds the opinion of the DBQ examiner to be more persuasive than the Veteran's lay assertions. Based on the above, the Board concludes that the preponderance of evidence is against granting service connection for the left ear hearing loss disability; in this case the nexus element is not met. The appeal must therefore be denied as to this issue. There is no reasonable doubt to be resolved as to this issue. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 3. Entitlement to service connection for left ear tinnitus. The Board finds that service connection is not warranted for tinnitus. Significantly, the STRs do not reflect any complaints of or reference to tinnitus. While the Veteran indicates that his tinnitus developed as a result of his exposure to loud noise and trauma during service, the January 1969 separation examination report shows that the ears and drums were normal. Moreover, post-service treatment reports show no complaints or references to tinnitus until November 2010, more than 35 years after service separation. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). In addition, while the Veteran has a current diagnosis of tinnitus, there is no competent evidence indicating that there is a relationship between the Veteran's tinnitus and active service. The only medical opinion regarding a nexus to military service is the negative opinion provided by the DBQ examiner. The Veteran has not submitted any credible and competent evidence of a nexus to service. Significantly, following the DBQ audiological examination in January 2015, the examiner reported a diagnosis of tinnitus. The examiner opined that the tinnitus was less likely than not caused by or a result of military noise exposure. The examiner noted that the Veteran reported onset of tinnitus in the left ear in 2010 which is significantly after military separation. The Board finds the opinion of the examiner to be persuasive evidence. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran. It was accompanied by a clear rationale. Moreover, no other competent evidence of record refutes that opinion. Rather, during an audiological consultation in May 2016, while the Veteran stated that he believed that the tinnitus might be from the injury to the left side of his body during service, a VA audiologist noted that if the tinnitus was from the service injury, it would have started back at that time and not 40 years later. As there is no probative medical evidence establishing an etiological link between the Veteran's current tinnitus and his time in service, the service connection claim for tinnitus must be denied. The Board recognizes that the Veteran states that he has tinnitus which is due to noise exposure and trauma in service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board finds the opinion of the DBQ and VA examiners to be more probative than the Veteran's lay opinion as to cause or onset, and the examiners' opinion is consistent with the record. Additionally, as noted above, his statements of continuity since service have been found to not be credible. In summary, the preponderance of evidence is against a finding that the nexus element has been met as to the tinnitus claim. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, service connection is denied. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs