Citation Nr: 18160617 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-52 899 DATE: December 27, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest during service or within one year of separation. Bilateral sensorineural hearing loss disability is not attributable to service. 2. Tinnitus is not attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to December 1978. This matter was before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the RO. The Veteran testified before the undersigned at a January 2017 hearing at the RO. A transcript of the hearing is in the claims file. The Veteran filed a notice of disagreement to the February 2017 rating action in October 2017, disagreeing with: the request to reopen a claim of service connection for a right ankle disability; the denial of service connection for a lumbar spine disability, a right elbow disability and a right knee disability; and, denial of nonservice-connected pension benefits. The electronic record indicates that the Agency of Original Jurisdiction (AOJ) is acting on these issues. Although the matters are therefore within the Board’s jurisdiction, they have not been certified for appellate review and the Board will not undertake review of the matters at this time. If the matters are not resolved in the Veteran’s favor, the RO will certify these matters to the Board which will undertake appellate review of the RO’s action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board’s jurisdiction is triggered by the timely filing of a notice of disagreement); 38 C.F.R. § 19.35 (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue). This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, other organic disease of the nervous system (i.e., sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, other organic disease of the nervous system (i.e., sensorineural hearing loss) is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Service connection for bilateral hearing loss and tinnitus Specific to claims of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The Veteran asserts that noise exposure in service from artillery fire caused his bilateral hearing loss disability. The March 1971 enlistment examination showed that the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 / 25 LEFT 25 15 5 / 30 The Veteran was assigned a “1” rating under the PULHES profile system for hearing, indicating that the Veteran’s was then in a high level of fitness in March and August 1977. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H “); eyes (“E”) and psychiatric condition (“S”); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The August 1978 separation examination showed that the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 10 20 LEFT 20 15 5 5 10 The service treatment records show no complaints or findings of hearing loss disability. However, that the absence of in-service evidence of hearing loss disability is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A July 2012 Ear, Nose and Throat (ENT) consult note reflects that the Veteran sought treatment for bilateral ear psoriasis. The Veteran denied experiencing hearing loss, tinnitus, vertigo, otalgia and otorrhea. He had no other head and neck (H&N) complaints. In November 2015, the Veteran underwent a VA audiological examination which showed that the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 40 70 70 LEFT 30 20 30 60 60 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. Thus, he demonstrated bilateral hearing loss disability for VA purposes. The audiologist opined that the right and left ear hearing loss was not at least as likely as not caused by or a result of an event during service. The audiologist explained that the Veteran had normal hearing in the right ear and mild hearing loss at 4000 Hertz in the left ear on his March 1971 enlistment examination. However, the audiologist noted that an interim examination in 1976 showed normal hearing. Further, the August 1978 separation examination showed that the Veteran’s hearing was normal with no evidence of a standard threshold shift (STS). With respect to his claimed tinnitus, the Veteran reported that he first noticed his tinnitus in 1979. He reported that he experienced bilateral, intermittent recurrent tinnitus approximately three to five times per week, lasting 10 to 15 seconds in duration. The audiologist opined that the Veteran’s recurrent tinnitus was less likely than not caused by or a result of military noise exposure. The audiologist noted that the Veteran reported that he noticed his tinnitus after his separation from service. The audiologist explained that the Veteran was discharged from service with normal hearing and no evidence of STS. Further, the audiologist stated that the Veteran did not link the onset of his tinnitus to any in-service event, injury or illness. Further, there were no complaints of tinnitus documented in the service treatment records. Though the Veteran has current bilateral sensorineural hearing loss, the preponderance of the evidence is against a finding of a linkage between the onset of the hearing loss disability and a period of service. Rather, the evidence shows that the Veteran’s current bilateral hearing loss disability had no etiological relationship to in-service noise exposure. The audiologist in November 2015 explained that the Veteran had normal hearing in the right ear and mild hearing loss at 4000 Hertz in the left ear on enlistment examination; normal hearing at interim examination in 1976; and normal hearing at separation without evidence of STS. In addition, the Veteran denied experiencing hearing loss at ENT consult in July 2012. Thus, the earliest evidence of a hearing loss disability was the November 2015 report of examination. The law recognizes that the passage of many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Similarly, the preponderance of the evidence is against a finding of a linkage between the onset of the current tinnitus and a period of service. Rather, the evidence shows that the Veteran’s current tinnitus had no etiological relationship to in-service noise exposure, having onset after his period of service (See November 2015 VA examination report). Further, the Veteran denied experiencing tinnitus at ENT consult in July 2012. There is no competent or credible evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current hearing loss disability and tinnitus and a period of the Veteran’s service. Additionally, there is no evidence of sensorineural hearing loss disability in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (other organic disease of the nervous system) entity were not noted. Further, there is no demonstration of continuity of symptomatology or evidence of sensorineural hearing loss disability within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The Veteran is not competent to link his bilateral hearing loss disability and tinnitus to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson 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 layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death). The Veteran is competent to state that he sustained in-service noise. However, he is a lay person and is not competent to establish that his current bilateral hearing loss disability and tinnitus onset because of any in-service-noise exposure. The Veteran is not competent to offer an opinion as to etiology of any current bilateral hearing loss disability and tinnitus. The question regarding the etiology of such disabilities is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus must be denied. The preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel