Citation Nr: 18100733 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 14-34 455A DATE: April 19, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 0 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury, event, or disease. 2. Resolving reasonable double in the Veteran’s favor, his bilateral tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to March 1970. In his October 2014 VA Form 9 the Veteran requested a Board hearing, but withdrew his request in an October 2015 correspondence. Service Connection Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for chronic diseases listed in 38 U.S.C. sections 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss, asserting that he had significant noise exposure in-service while serving as an armor crewman and a drill instructor. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis bilateral hearing loss, and the evidence shows that the Veteran had noise exposure while in service, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran has been given a diagnosis of bilateral hearing loss. See October 2005 private treatment record; February 2011 and March 2012 VA examination reports. The Veteran’s DD Form 214 shows that he was an armor crewman while in service and that he took a drill instructor course. Therefore, in-service noise exposure is conceded. However, in a January 1970 medical examination conducted at separation from service the Veteran’s ears were clinically normal. An audiogram showed auditory thresholds of 0, -5, 0 and 5 decibels in the right ear, and auditory thresholds of -5, -5, 0 and 0 decibels in the left ear, at the respective frequencies of 500, 1000, 2000, and 4000 Hertz, no measurement was provided for 3000 Hertz. Likewise, the Veteran reported no history of hearing loss in his January 1970 report of medical history given at separation. The Veteran has argued that the audiogram conducted in January 1970 was not “state of the art” and reported that, at the time, he would not have complained about any issue that would have delayed his discharge. See October 2014 VA Form 9. However, while the Board has no reason to doubt that the Veteran’s assertion regarding delaying his discharge, there is no evidence that the audiometric testing was faulty or produced an erroneous result, and the objective testing performed at the time did not demonstrate hearing loss for VA purposes. Private treatment records show the Veteran was not diagnosed with bilateral hearing loss until October 2005, three decades after his separation from service. While the Veteran is competent to report having experienced symptoms of hearing loss since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of bilateral hearing loss. The issue is medically complex, as it requires knowledge of audiological testing and interpretation. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran was afforded a VA audiological examination in February 2011. The examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was related to an in-service injury, event, or disease, including his in-service noise exposure as an armor crewman. The examiner explained that although the Veteran had significant high frequency hearing loss at the time of the exam, his hearing was normal at separation, so the current loss was likely a post service occurrence. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran underwent an additional VA audiology examination in March 2012 with the same VA examiner. While the examiner again diagnosed hearing loss, but no opinion as to etiology was provided. However, the Board finds that as the same VA examiner conducted the February 2011 audiological examination and provided an etiological opinion at that time, and no additional evidence related to the Veteran’s claimed hearing loss had been received since the prior VA examination, remand for an addendum opinion as to etiology is unnecessary. While the Veteran believes his bilateral hearing loss is related to noise exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of audiological testing and interpretation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the opinion of the February 2011 VA examiner. Upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 2. Bilateral Tinnitus The Veteran contends that he is entitled to service connection for bilateral tinnitus, asserting that he had significant noise exposure in-service while serving as an armor crewman and a drill instructor. The Veteran has stated that he has constant ringing in his ears. See October 2005 private treatment record; February 2011 VA examination; March 2012 VA examination. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). As noted above, significant in-service noise exposure has been conceded. The Veteran has asserted that he has experienced tinnitus as long as he can remember. See August 2011 notice of disagreement. The Veteran is competent to report the onset and continuity of his current symptomatology as tinnitus is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is credible with respect to this contention. A layperson is competent to testify as to the onset and continuity of symptomatology of tinnitus. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board finds his assertions of continuity of symptomatology to be credible and probative. (CONTINUED ON NEXT PAGE) The Board notes that a VA examiner opined that the Veteran’s tinnitus was less likely than not due to noise exposure during service. See February 2011 and March 2012 VA examination reports. Nevertheless, the Board has conceded in-service acoustic trauma and finds his reports of continuity of symptomatology since service credible. Therefore, in affording the Veteran the benefit of reasonable doubt, the Board finds that the Veteran’s tinnitus was incurred in service. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.303, 3.309(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mine, Associate Counsel