Citation Nr: 1808436 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-03 066 DATE Advanced on the Docket THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran currently has bilateral sensorineural hearing loss to an extent recognized as a disability for VA purposes. 2. Symptoms of bilateral hearing loss were not chronic in service and have not been continuous since service separation, and the current bilateral hearing loss disability did not manifest to a degree of 10 percent within one year of service separation and is not related to exposure to acoustic trauma or other injury or event in service. 3. Tinnitus did not first manifest during active service and has not been continuous since service separation, and any current tinnitus did not manifest to a degree of 10 percent within one year of service separation and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to June 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied service connection for the claimed disabilities. In January 2016, the Veteran notified the Board that he did not want a Board hearing. Service connection claims The Veteran contends that he spent 8-10 hours per day on the flight line in service, which exposed him to noise from jet engines and other aircraft. He asserts that his hearing problems were not "fully" caused by service, but "a portion" of his high frequency nerve damage and tinnitus was caused by exposure to the loud jet engines. Specifically, the Veteran states that he thinks 5-10 percent of his hearing loss and tinnitus is due to his military service. See the November 2014 statement, April 2015 statement, and January 2016 VA Form 9. Law and Regulations To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995). Diseases of the nervous system, including sensorineural hearing loss and tinnitus, are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. Hearing Loss The Veteran is competent to describe being exposed to loud noise, such as those caused by aircraft. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran's lay statements are also credible because they are confirmed by the circumstances of his service. His DD Form 214 that indicates that the Veteran served in the Air Force as a jet engine mechanic and airplane mechanic. For these reasons, the in-service injury of acoustic trauma to both ears is established. The Veteran currently has a bilateral sensorineural hearing loss "disability" that meets the criteria of 38 C.F.R. § 3.385. In February 2015, the Veteran was afforded a VA audiological examination, which reflected the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 55 55 60 LEFT 5 15 65 65 80 The Veteran's speech recognition score using the Maryland CNC Test was 88 percent in the right ear and 84 percent in the left ear. The diagnosis was bilateral sensorineural hearing loss. The preponderance of the evidence, however, establishes that the bilateral sensorineural hearing loss is not due to or related to service, to include the noise exposure in service. The standard for measuring auditory thresholds changed as of October 1967, after the Veteran's period of service. Prior to November 1967, military audiometric results were reported in American Standards Association (ASA) units. VA used ASA units prior to July 1966. In July 1966, however, VA adopted International Organization Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R § 3.385 is based on ISO units. Thus, the Veteran's October 1962 audiogram, conducted upon enlistment into the Air Force, reflected the following puretone thresholds, in decibels: [The figures in parentheses represent the original ASA units, and are provided for data comparison purposes.] HERTZ 500 1000 2000 3000 4000 RIGHT 20 (5) 10 (0) 10 (0) -- 5 (0) LEFT 20 (5) 10 (0) 10 (0) -- 5 (0) STRs are silent for complaints, diagnosis, or treatment of hearing loss during service. In an August 1965 examination for flying training, the Veteran's puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (-10) 0 (-10) 0 (-10) 0 (-10) -5 (-10) LEFT 5 (-10) 0 (-10) 0 (-10) 0 (-10) -5 (-10) In a June 1966 separation examination, the following puretone thresholds, in decibels, were noted: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (0) 10 (0) 10 (0) 10 (0) 5 (0) LEFT 15 (0) 10 (0) 10 (0) 10 (0) 5 (0) He was also noted to have "normal (full)" hearing at separation. Thus, neither ear demonstrated the criteria of 38 C.F.R. § 3.385 to be considered a hearing loss disability at the time the Veteran separated from service. See also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (explaining that the threshold for normal hearing is from zero to 20 decibels). There is also no medical evidence showing symptoms or a diagnosis of sensorineural hearing loss within one year from service separation in August 1971 to establish presumptive service connection. See 38 C.F.R. §§ 3.307, 3.309(a). Rather, VA treatment records indicate that in an audiology consultation, the Veteran reported being evaluated for hearing loss by a private audiologist four years prior, which resulted in hearing aids being recommended, which the Veteran did not purchase. This evaluation occurred more than 40 years after the Veteran separated from service. Therefore, service connection for bilateral hearing loss on a presumptive basis under 38 C.F.R. § 3.303(a) is not warranted. The Board has also considered the provisions of 38 C.F.R. § 3.303(b). While the Veteran has provided competent and credible testimony as to continuous decreased hearing, the record does not support his assertions regarding the etiology of the hearing loss. The weight of the evidence shows that there were no chronic symptoms of hearing loss during service or continuous symptoms of hearing loss since service. The June 1966 service separation examination shows that the Veteran did not have any hearing loss for VA purposes upon separation from active service. The STRs do not document hearing loss symptoms or complaints, and the Veteran did not report having any ear trouble or hearing loss in his separation examination. In fact, on his June 1966 report of medical history, the Veteran denied any history of ear trouble or running ears. Furthermore, more than 40 years passed between the Veteran's discharge from service and his private audiology consultation in approximately 2010. This lengthy period of time without diagnosis or treatment weighs against the finding that the bilateral hearing loss has existed since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The weight of the competent and credible evidence does not establish chronic and continuous symptoms of bilateral hearing loss in service or continuously after service. The STRs do not document any complaints of hearing loss. The Veteran has not provided any lay evidence that documents continuous hearing loss symptoms since service; he has only asserted that the current hearing loss is related to service. He has not provided any medical evidence documenting continuous symptom since service. Thus, service connection for bilateral hearing loss on a presumptive basis under 38 C.F.R. § 3.303(b) is not warranted. The Board also finds that the weight of the competent and credible evidence establishes that the current bilateral hearing loss is not medically related to active service. The February 2015 VA audiometric examination report indicates that the examining audiologist opined that it was less likely as not that the bilateral hearing loss was attributable to the Veteran's military noise exposure. The basis for the examiner's opinion was that the Veteran's hearing was normal at separation and without any significant threshold change from enlistment. The examiner also noted that the Veteran reported wearing "double hearing protection" while working on aircraft and on the flight line; working 37 years post-service as an electric meter mechanic for the National Grid, which required using hearing protection; enjoying hunting as a recreational activity; and a familial history of a father who had hearing loss. The Board finds that the VA examiner's opinion is competent and credible, and as such, is entitled to significant probative weight. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The examiner's opinion was rendered after reviewing the Veteran's claims file, which included STRs; soliciting a medical history from the Veteran; and conducting a physical examination of the Veteran. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The VA examiner provided the facts and rationale on which she based her opinion. The probative value of the VA examiner's opinion is further bolstered by its consistency with the evidence in the claims file. The opinion is therefore probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has made a general assertion that his hearing loss is related to noise exposure in service. The Board, however, cannot rely on the Veteran's general assertions as to medical nexus to service because although he is competent to report decreased hearing, he is not shown to possess the type of medical expertise that would be necessary to opine regarding the etiology of hearing loss. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The question of causation in this case involves a complex medical issue, requiring knowledge of the types and presentation of hearing loss and interpretation of testing and the Veteran has been shown to have the medical expertise required to address such an issue. Moreover, there is no medical opinion to contradict the conclusions of the VA examiner. As such, there is no competent medical evidence to establish a nexus between the current bilateral hearing loss and any documented event or incident of service. There can be no doubt that the Veteran rendered honorable and faithful service for which the Board is grateful, and that he is sincere in his belief that his hearing loss is related to the noise he heard in service. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted for hearing loss. The Board has weighed the evidence of record, and finds that the preponderance of the evidence is against a finding that the bilateral sensorineural hearing loss is related to service. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Tinnitus The Veteran is considered competent to report the observable manifestations of his tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a veteran is competent to testify as to the presence of tinnitus); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He competently and credibly reports experiencing tinnitus. Accordingly, the Board finds that the threshold element for service connection, a current disability, has been established. The Board has also found that in-service noise exposure is established, as discussed above. However, the evidence of record is insufficient to establish a nexus between current disability and service. STRs, including the separation from service examination, do not document any complaints, symptoms, or findings of tinnitus. There is no documented complaint or finding of tinnitus until the November 2014 VA audiology consultation, which was approximately 48 years after discharge from service. Moreover, in the February 2015 VA audiological examination, the Veteran reported that he could not remember the onset of his tinnitus; rather, he could only specify that it started "quite awhile" ago and was constant. The examiner concluded that the tinnitus was less likely than not caused by or a result of military noise exposure. The rationale was that at separation, the Veteran had normal hearing bilaterally and therefore no evidence that significant acoustic noise trauma. Because there was no evidence of significant hearing loss in service, there was no basis on which to conclude that the tinnitus was caused by noise exposure. In addition, STRs were silent for complaints, diagnosis, or treatment for tinnitus, and the first documented complaint of tinnitus was 48 years after separation from service. The Board finds the medical evidence generated at the time of the Veteran's period of service, including the Veteran's statements and responses on medical questionnaires, to be highly probative. These records were created contemporaneously with the Veteran's period of service and contain information that is inherently more reliable than that recorded at a later time. Further, while the Veteran has made statements alleging a nexus in connection with his current claim, he has also supplied statements indicating a relatively recent onset of the disability. Finally, no competent and credible opinion connecting tinnitus to service is offered by any medical professional. The Board recognizes that the Veteran's stated belief that his tinnitus his related to service is potentially competent opinion evidence. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the question of a nexus in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Here, the Veteran is not reporting an observed cause and effect relationship; he is noting established facts (noise, current diagnosis) and drawing a reasoned conclusion. Unfortunately, he lacks the specific knowledge and training that would inform such reasoning and permit a competent opinion on the etiology of a disease that arose quite remotely from the potential injury. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the tinnitus is related to service. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel Copy mailed to: New York State Division of Veterans' Affairs Department of Veterans Affairs