Citation Nr: 1807585 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-07 113A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from November 1961 to January 1969, with prior service in the U.S. Army National Guard during the period from January 1961 to November 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifested during active service or within one year of separation and is not related to active service. 2. Tinnitus was not manifested during active service or within one year of separation and is not related to active service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by active service, and an organic disease of the nervous system (bilateral hearing loss disability) may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. Tinnitus was not incurred in or aggravated by active service, and an organic disease of the nervous system (tinnitus) may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Law Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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, including organic diseases of the nervous system (such as sensorineural hearing loss and tinnitus), 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 (a), 3.309(a). With chronic disease 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 clearly attributable to intercurrent cause. 38 C.F.R. § 3.303 (b). Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the 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 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. B. Facts and Analysis The Board concedes that the Veteran has a current bilateral hearing loss disability as set forth at 38 C.F.R. § 3.385 and tinnitus. The Board also accepts that as a Russian language interpreter and voice intercept operator/transcriber, he was exposed to long-term high frequency radio noise and using headphones. The record does not contradict the Veteran's assertion that he was also exposed to a certain degree of small arms fire consistent with training, without hearing protection. See Veteran's March 2014 statement. Thus, the only issue before the Board is whether there is a nexus between either the Veteran's bilateral hearing loss disability and/or tinnitus and his period of active service. As explained below, the weight of the evidence compels the conclusion that neither the Veteran's current bilateral hearing loss nor tinnitus is causally related to service, including the acknowledged in-service noise exposure. The Veteran's service treatment records, dated from January 1965 to January 1969, are negative for complaints or findings of hearing loss or tinnitus. At his January 1965 examination for discharge/reenlistment, ears were normal. Audiometric results showed decibel thresholds at all frequencies from 500 to 4000 Hertz to be either -5 or -10 bilaterally. At his January 1969 examination at separation in 1969, ears were normal. Audiometric results showed decibel thresholds at all frequencies from 500 to 4000 Hertz to be 0 bilaterally. The Veteran reported no current or past ear trouble or hearing loss. In his VA form 21-526, claim for benefits filed in March 2012, the Veteran reported that he suffered hearing loss and tinnitus in military service and "still" suffers from them today. The Veteran has diagnoses of bilateral sensorineural hearing loss and tinnitus dating from June 2013. See June 2013 VA audiological examination report. As to the current bilateral hearing loss, the June 2013 VA examiner stated that the current hearing loss did not exist prior to service and was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The audiologist noted that audiometric testing performed at the time of induction-re-enlistment in 1965 and again at discharge in 1969 revealed normal hearing bilaterally. A comparison between those test results indicates that this Veteran experienced no significant changes in hearing for either ear during active duty service. The examiner stated that, furthermore, there is no known scientific basis for the delayed onset of noise induced hearing loss, citing to the Institute of Medicine study, Noise and Military Service: Implications for Hearing Loss and Tinnitus, 2005. As to bilateral tinnitus, the examiner noted that the Veteran reported that it started in the mid-1970's and was not associated with any specific event. The examiner opined that the tinnitus was less likely than not (less than 50% probability) caused by or result of military noise exposure. He provided the following rationale: A diagnosis of noise-induced tinnitus requires a diagnosis of noise-induced hearing loss or an association between tinnitus onset and some noise-related event (Tinnitus Handbook, Tyler 2000). The veteran experienced no hearing loss during military service and he does not associate tinnitus onset with any specific event. There is, therefore, no basis for nexus between his current tinnitus and military service. The Veteran's aforementioned written statement in March 2014 includes his response that during the time of his exposure to acoustic trauma, he did not realize that his hearing was being compromised. Thus he just turned the volume up and continued with the mission. He explained that this did not result in visits to medical facilities to verify and document his hearing loss until a few years after he completed my second tour and left the Air Force. Despite the Veteran's assertions in March 2014, there are no treatment records showing hearing loss or tinnitus, and the Veteran has not submitted any information indicating that treatment records are available, although he was provided the opportunity to do so. He did not return a completed VA form 21-4142 Authorization for Release of Information that was sent to him in July 2012. 1. Bilateral Hearing Loss Disability First, it is uncontroverted that bilateral hearing loss initially manifested many years following service. The VA 2013 VA examination is the initial diagnosis in the record, with the Veteran's March 2012 claim represents the first indication of hearing loss in the record. The Board emphasizes the over 40 year gap between discharge from active duty service (1969) and evidence of disability in approximately 2013. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for disability can be considered as a factor in resolving claim). Thus, hearing loss has not been shown to manifest within one year after separation from service, and the applicable presumption does not apply under 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. The Board also notes that although sensorineural hearing loss is an enumerated chronic disease, it was not noted or diagnosed during service or within one year after separation. As the evidence establishes that the Veteran did not have characteristic manifestations of the disease process during service or within one year after separation, service connection under 38 C.F.R. § 3.303 (b) is not applicable. A veteran is competent to give evidence about what he or she has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). Under certain circumstances, a layperson is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While he argues there was acoustic trauma in service, which the Board concedes, to the extent that the Veteran asserts that hearing loss was present in service or for years following service, the evidence does not support this assertion. Second, the medical opinion evidence preponderates against a relationship between the current hearing loss and in-service noise exposure. There are no competent, credible and positive nexus opinions of record. The Board finds the VA opinion on hearing loss probative. Significantly, the examiner's opinion reflects that he accepted the Veteran's in-service noise exposure, as he cited to an article discussing hearing loss and military noise exposure. The only evidence in support of the Veteran's claim is his vague assertion that a bilateral hearing loss disability is related to service. Again, the Veteran is competent to report hearing loss in his 2012 claim. However, the Board finds the VA examiner's opinion as to post-service onset to be well supported and not inconsistent with the record. It is more probative than the Veteran's vague assertions that hearing loss is due to noise exposure in service, was present in service and is present still. In fact, the Veteran himself actually denied hearing loss at service separation, and as such his more recent statements to the contrary are not considered fully credible. The Veteran's lay statements are outweighed by the VA examiner's opinion that considered the Veteran's statements, clinical results, and accepted noise exposure consistent with the Veteran's assertions. 2. Tinnitus The preponderance of the evidence reflects that tinnitus first manifested multiple years following service. The 2012 application is the first mention of tinnitus in the record, and the initial and sole diagnosis is in the 2013 VA examination. The Board again emphasizes the over 40 year gap between discharge from active duty service (1969) and evidence of disability. See Maxson v. Gober, 230 F.3d 1330 at 1333. Additionally, the Veteran himself reported the onset of tinnitus in the mid-1970's during the 2013 VA examination, which was well over a year after his discharge from the service. Thus, with post-service claim and examination showing tinnitus not before 2012, and even then claimed to have not occurred until the mid-1970's tinnitus has not been shown to manifest within one year after separation from service, and the applicable presumptive does not apply under 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. The Board also notes that although tinnitus is an enumerated chronic disease, it was not noted or diagnosed during service or within one year after separation. As the evidence establishes that the Veteran did not have characteristic manifestations of the disease process during service or within one year after separation, service connection under 38 C.F.R. § 3.303 (b) is not applicable. The Board also notes that tinnitus is a subjective condition, and if the Veteran denies it was present until at least the mid-1970's, no other evidence could persuasively counter this conclusion. A veteran is competent to give evidence about what he or she has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). Under certain circumstances, a layperson is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). That being said, there is indeed no record of treatment or even complaints of tinnitus documented until 2012. Further, the medical opinion evidence preponderates against a relationship between tinnitus and in-service noise exposure. The Board finds the VA opinion on tinnitus probative. The examiner supported his conclusion against a relationship between tinnitus and acknowledged in-service acoustic trauma with an adequate rationale. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The only remaining evidence in support of the Veteran's claim is his vague assertion in his VA form 21-526 that tinnitus is related to service and that he suffered from tinnitus in service and still suffers from tinnitus. In fact, the Veteran himself actually denied ear trouble of any sort at service separation in 1969, and as such his more recent statements to the contrary are not considered fully credible. Moreover, he told the 2013 examiner that tinnitus first started not earlier than the mid-1970s. The Veteran's lay statements in favor of the claim are outweighed by the VA examiner's opinion that considered the Veteran's lay statements, clinical results, and accepted noise exposure consistent with the Veteran's assertions. To the extent that the Veteran urges that tinnitus which first manifested years following service is somehow related to service, his lay statements are outweighed by the VA opinion that considered the Veteran's acoustic trauma, lay statements, clinical results, and a review of the relevant medical literature cited in the opinion. 3. Conclusion Based upon a review of the record, the preponderance of the evidence is against the claims of entitlement to service connection for bilateral hearing loss and tinnitus. Therefore, the benefit of the doubt rule is not for application because the evidence is not in relative equipoise. The benefits sought on appeal are accordingly denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Finally, neither the Veteran (nor his representative) raised issues with respect to VA's duty to notify or assist or presented other procedural arguments that were not addressed above. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). ORDER Service connection for bilateral hearing loss disability is denied. Service connection for tinnitus is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs