Citation Nr: 1817192 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-11 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2017, the Veteran and his daughter testified at a video conference hearing before the undersigned. A transcript of that hearing is of record. In April 2017, the Board granted an increased initial rating for PTSD and entitlement to a TDIU. Additionally, it remanded the pending service connection claims for further development. The case has now returned to the Board for appellate review. VETERAN'S CONTENTIONS Regarding both of his hearing loss and tinnitus claims, the Veteran has contended that he has current disabilities as a result of service. Specifically, the Veteran has stated that he currently has tinnitus and bilateral hearing loss as a result of close contact with field artillery in service. FINDINGS OF FACT 1. The evidence of record indicates that the Veteran has had both tinnitus and hearing loss to the extent recognized as a disability for VA purposes during the course of the appeal. Specifically, in a September 2008 hearing health report from Audibel Hearing Centers & Family Audiology, the Veteran stated that he had ringing in both of his ears. Additionally, he stated that he noticed that he had difficulty hearing for about the past 2 years, while his wife had noticed it for the past 5 years. An audiogram showed puretone thresholds of 40, 40, 55, 60, and 60 decibels in the left ear, and 35, 45, 35, 40, and 35 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hertz. 2. The Veteran's service personnel records (SPRs) are positive for in-service exposure to loud noises as the Veteran's DD 214 indicates a specialty of artillery. 3. A June 2008 VA audiological examination and opinion was previously found to be inadequate for adjudicative purposes in the Board's prior April 2017 decision and remand due to new factual information obtained since the time of examination. However, at the time of this examination, the Veteran reported an onset of tinnitus in approximately 2005 or 2006. 4. In a November 2010 statement, the Veteran reported having persistent hearing loss and tinnitus ever since his discharge from service. Additionally, the Veteran stated that he was even denied employment in 1971 due to his hearing loss. 5. At the February 2017 Board hearing, the Veteran testified that he first noticed ringing in his ears around 1988 or 1989. He elaborated that he was in the field artillery and probably did not pay any attention to it until after discharge. He could not recall if he had any ringing in his ears while in service. In regard to his hearing loss claim, the Veteran testified that he first started noticing hearing loss around the year 1973 as he had to lean towards people to hear, he had issues at work, had occasional problems operating equipment, and was disqualified from one job because his potential employers thought he might injure someone. 6. Following the Board's April 2017 remand, the Veteran was scheduled for a new VA examination in regard to both claims in August 2017. But, the Veteran failed to report for the examination and did not provide an explanation for his absence. 7. The record is currently devoid of competent, credible medical opinions linking the Veteran's tinnitus and bilateral hearing loss to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101(24), 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 101(24), 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection is warranted 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing loss and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303(b) is also applicable in the instant case. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the appellant's separation from service. Walker, 708 F.3d at 1338. As indicated above, after reviewing the evidence of record, the Board finds that the Veteran is not entitled to service connection for bilateral hearing loss and tinnitus. As such, the Board will deny the Veteran's claims. In support of this determination, the Board acknowledges that the Veteran has satisfied the first 2 requirements for service connection. Specifically, as recounted above in the Findings of Fact section, the Veteran has (1) current disabilities of tinnitus and hearing loss, and (2) in-service exposure to loud noises via his primary specialty of artillery. Notably, regarding element (1) in relation to his tinnitus claim, the Court of Appeals for Veterans Claims (Court) has held that a layperson is competent to diagnose tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). But, despite the above, the Board finds that the record is devoid of credible, competent medical opinions linking the Veteran's tinnitus and hearing loss to service. Relatedly, in April 2017, the Board remanded both pending issues so that the Veteran could be afforded a new VA examination with medical opinions. One was scheduled for August 2017, but the Veteran failed to appear. 38 C.F.R. § 3.655 mandates the procedure for deciding claims when a claimant fails to report to a VA examination in connection with an original service connection claim or a claim for an increased disability rating. If a claimant fails to report to a VA examination without good cause, the claim is decided based on the evidence of the record. See 38 C.F.R. §§ 3.655(a), (b). 38 C.F.R. § 3.655(a) states that "[e]xamples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc." Following his absence from the August 2017 VA examination, the Veteran did not submit any statements indicating why he failed to appear. Accordingly, pursuant to 38 C.F.R. § 3.655, the Board must adjudicate the tinnitus and hearing loss claims on the evidence of record. Regarding the Veteran's hearing loss claim, although the Veteran indicated that he believed his hearing loss was a result of the circumstances of his service, he has not demonstrated that he possesses the medical training and knowledge as to provide an opinion regarding the etiology of his hearing loss. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As there are no other competent and credible opinions of record regarding the cause of his current hearing loss, the Board finds the final element for service connection to not be satisfied. As such, the Board must deny the Veteran's hearing loss claim. Moving to the issue of tinnitus, the Board first notes that, as a layperson, the Veteran is competent to testify about the observable symptom of ringing in his ears. See Layno v. Brown, 6 Vet. App. 465 (1994). Relatedly, the Veteran may also testify as to the onset of his symptoms and their continuity. Id. Although the Veteran has on occasion stated that his tinnitus began or resulted from service, the Board finds the Veteran's contentions not credible as they are inconsistent with the other evidence or record. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Specifically, aside from service, the Veteran has also given onset dates of 1988-1989 and 2005-2006 for his tinnitus. Additionally, during the February 2017 Board hearing, the Veteran testified that his tinnitus might have begun in service, but he could not recall. See Hearing Tr. at 7. Due to these inconsistencies and lack of clarity, the Board places less probative weight on the Veteran's contentions of an in-service onset for tinnitus. Accordingly, the Board must also deny the Veteran's tinnitus claim. Lastly, the Board also finds that the chronic presumption is not applicable in the instant case as there is no indication that tinnitus or bilateral hearing loss first became manifest in service or within one year of discharge. 38 C.F.R. §§ 3.307, 3.309. Additionally, there is no evidence that the Veteran maintained a continuity of symptoms that began in service and continued to the present. 38 C.F.R. § 3.303(b). As such, the Veteran's claims cannot be granted on a presumptive basis. ORDER Service connection for tinnitus is denied. Service connection for bilateral hearing loss is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs