Citation Nr: A19001908 Decision Date: 10/15/19 Archive Date: 10/11/19 DOCKET NO. 190222-1785 DATE: October 15, 2019 ORDER 1. Entitlement to service connection for depression is denied. 2. Entitlement to service connection for bilateral hearing loss is denied. 3. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s depression was not manifested in service, and is not shown to be etiologically related to his service. 2. A hearing loss disability in either ear was not manifested during the Veteran’s service, or to a compensable degree within one year following his discharge from service, and such disability is not shown to be etiologically related to his service. 3. The Veteran’s tinnitus was not manifested in service or to a compensable degree within a year following his discharge from active duty; continuity of tinnitus following active service is not shown; and his tinnitus is not otherwise shown to be etiologically related to his service, to include as due to exposure to noise therein. CONCLUSIONS OF LAW 1. Service connection for depressive disorder is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. 2. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. Service connection for tinnitus is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program the Rapid Appeals Modernization Program (RAMP). This decision is written consistent with the new AMA framework. The appellant is a Veteran who served on active duty from November 1963 to October 1965. On January 18, 2019, the Veteran selected the Supplemental Claim lane when he submitted the RAMP election form. The February 2019 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this RAMP rating decision to the Board and requested evidence submission review. Therefore, the Board’s review is limited to the evidence on record at the time of the receipt of the RAMP opt-in form and evidence submitted within 90 days of the receipt of the RAMP Notice of Disagreement (NOD), received February 20, 2019. The Veteran’s February 2019 RAMP NOD limited the appeal to the matters of service connection for depression (and the Agency of Original Jurisdiction (AOJ) limited to that diagnosis, finding that new and relevant evidence was received), bilateral hearing loss, and tinnitus. An August 2017 rating decision considered the claim of service connection for depression on the merits. Furthermore, an April 2018 rating decision found that new and material evidence was received and considered the claims of service connection for bilateral hearing loss and tinnitus on the merits. The Board is bound by these favorable findings. Accordingly, the issues opted into RAMP are entitlement to service connection for depression, bilateral hearing loss, and tinnitus on de novo (merits) consideration. 38 C.F.R. § 3.104. The appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include sensorineural hearing loss (SNHL) and tinnitus as organic diseases of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 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 layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Entitlement to service connection for depression is denied. The Veteran contends that his depressive disorder is related to service; specifically, he contends it began in service after he witnessed a soldier drown in Korea. The Veteran’s service treatment records (STRs) contain no mention of complaints, diagnosis, or treatment pertaining to a psychiatric disability. On September 1965 service separation examination, psychiatric clinical evaluation was normal; the Veteran denied depression or excessive worry, frequent or terrifying nightmares, and nervous trouble of any sort. An October 2007 VA treatment record notes a depression screening was negative. An August 2008 VA treatment record notes the Veteran’s report of depression upon receiving a diagnosis of lung cancer (which is not service connected). An October 2008 VA treatment record notes a positive depression screening. In June 2013, VA made a formal finding of a lack of information required to corroborate the cited stressor (witnessing a fellow soldier drown while returning to base along the Korean DMZ during the 1965 summer monsoon season). On August 2013 VA posttraumatic stress disorder (PTSD) examination, depressive disorder, not otherwise specified (NOS), was diagnosed. The Veteran reported feeling depressed, discouraged and frustrated about his limited lifestyle and inability to engage in formerly pleasurable activities due to COPD. The examiner opined the Veteran’s brief periods of depression are related to his chronic (non-service connected) medical conditions. The examiner concluded that despite the lingering effects on the Veteran not being able to save the soldier from drowning, the totality of the evidence suggests that his depressive symptoms are more strongly linked to his ongoing serious medical problems than military service. The examiner found that the Veteran’s survivor’s guilt, intermittent nightmares, and painful memories do not account for the severity of his depression, noting that his medical records show no evidence of impairment in social or occupational functioning due to the trauma alone, prior to the emergence of his serious medical conditions and chronic pain. The examiner opined the Veteran’s respiratory condition appears to be the primary source of depression for the previously physically active Veteran and that a more sustained and pervasive depression is related to his failing health, particularly his severe COPD. The Veteran filed a new claim of service connection for depression in August 2017, and submitted a November 2017 statement in support of claim from his private provider, who opined it is more likely than not that his depression had its origins in service. The provider noted that the Veteran reported experiencing ongoing symptoms of depression since service. Depressive disorder was not reported/noted in service and was not clinically noted postservice prior to 2008. Accordingly, service connection for depressive disorder on the basis that such disability became manifest in service and persisted is not warranted. What remains for consideration is whether the Veteran’s diagnosed depressive disorder is otherwise shown to be etiologically related to his service. Absent evidence of onset in service, whether a current depressive disorder disability is related to remote service/and event therein is a medical question beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The Veteran is a layperson, and his own opinion in the matter is not competent evidence as he has not demonstrated (and has not alleged he has) the medical expertise required to diagnose, and determine the etiology of, depressive disorder. While a November 2017 private opinion relates his depressive disorder to his service, it does not reconcile that finding with contemporaneous clinically recorded data (which show depression became manifest in 2008) and does not include any rationale for relating depression to the Veteran’s service other than his own self-reports (which are inconsistent with contemporaneous clinically recorded data). Accordingly, the November 2017 opinion does not merit any significant probative value. The Board finds the opinion by the August 2013 examiner to be more probative, and persuasive. The opinion is based on thorough psychiatric evaluation/interview of the Veteran, and includes rationale that cites to accurate factual data. It identifies a more likely etiology for the Veteran’s depression, his COPD and failing health. The provider is a medical professional competent to offer the opinion, and it is probative evidence in the matter. Considering the lack of equally probative evidence to the contrary, the Board finds it persuasive. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for depressive disorder. Accordingly, the appeal in the matter must be denied. 2. , 3. Entitlement to service connection for bilateral hearing loss and tinnitus is denied. The Veteran contends that his hearing loss resulted from his exposure to loud noise during service and that his tinnitus became manifest in service. On October 1963 service entrance examination, audiometry showed that puretone thresholds, in decibels, were (converted from ASA units to ISO units): HERTZ 500 1000 2000 3000 4000 Right 15 10 10 15 30 Left 20 15 10 10 5 The Veteran’s military occupational specialty (MOS) was weapons infantryman. His STRs contain no mention of complaints, diagnosis, or treatment pertaining to hearing loss or tinnitus. On September 1965 service separation examination, a hearing loss disability was not noted. Audiometry showed that puretone thresholds, in decibels, (converted from ASA units to ISO units) were: HERTZ 500 1000 2000 3000 4000 Right 25 15 15 N/A 15 Left 25 20 15 N/A 10 In a contemporaneous report of medical history, he denied ear trouble, running ears, or hearing loss. In an October 2010 statement, the Veteran reported his hearing was good prior to service, and that after separation from service he experienced ringing in his ears and had hearing loss. He did not specify when the symptoms began. On November 2010 VA audiological examination, the Veteran reported exposure to loud noise in service from shell explosions, grenades, tank fire, rocket launchers, 155 howitzers, and large caliber gunfire. He related that after service, he worked as a welder in coal mines for over 18 years, and as a millwright for 16 years, and had recreational exposure to loud noise exposure from tractors and hunting. He reported that he first noticed tinnitus more than 12 years prior, and that it was constant. Audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 25 30 55 65 75 Left 25 35 55 65 70 Speech audiometry revealed speech recognition ability of 88 percent in each ear. Such findings reflect a bilateral hearing loss disability. See 38 C.F.R. § 3.385. At the July 2012 hearing, the Veteran testified he first became aware of his hearing problems a little over 20 years ago, when his hearing was tested by ans employer. He was unable to say when he first noticed tinnitus, but reported the symptoms had worsened significantly over the past seven to eight years. On September 2014 VA audiology examination, the Veteran reported postservice noise exposure from working in construction for 10 to 15 years where he wore hearing protection some of the time, and from working as a millwright for 16 years with hearing protection. He reported recreational noise exposure from hunting, target shooting, riding 4 wheelers, and chainsaws. The examiner opined that the Veteran’s bilateral hearing loss and tinnitus are unrelated to military noise exposure. The examiner noted that there was no permanent positive threshold shift (worse than reference threshold) greater than normal for either ear. The examiner explained that the etiology of sensorineural hearing loss is difficult to determine, as it can be caused by aging, vascular disease, viral disease, autoimmune disease, noise exposure, medications, genetics, or a combination of those or other factors. The examiner explained that auditory damage from acoustic trauma occurs instantly, which is why normal hearing on a discharge examination cannot be disregarded, and observed that auditory threshold shifts inservice were not significant, that there was otherwise no other evidence of a temporary threshold shift during service, and that the Veteran’s other risk factors included a long history of occupational and recreational noise exposure. Additionally, the Veteran reported his tinnitus began “a long time ago” and could not be more specific. The examiner noted there is no documentation in the Veteran’s records of a tinnitus complaint or of more specific reports of onset in service. VA treatment records note the Veteran denied experiencing tinnitus. See January and August 2016 VA treatment records (received November 2017). In October 2017 the Veteran filed a new claim of service connection for bilateral hearing loss and tinnitus and submitted a statement in support of the claim from his private provider. In that statement, it was noted that the Veteran reported constant tinnitus that began in service; the private provider opined his bilateral hearing loss disability and tinnitus are more than likely related to service. While the provider acknowledged the Veteran’s STRs and his accounts of exposure to noise in service (to include from explosions and being in the military police), the provider also noted there was no significant history of unprotected postservice occupational or recreational exposure to noise. The provider explained that the degree and pattern of hearing loss and tinnitus shown are consistent with the high volumes of noise [to which he was exposed in service] in service. On November 2017 VA audiological examination, it was noted that the Veteran’s service entrance and separation examinations found normal hearing in both ears, with no significant (greater than normal measurement error, or greater than 10 dB) threshold shifts in service in either ear. The examiner opined bilateral hearing loss and tinnitus are less likely than not caused by or a result of military noise exposure. The examiner cited to a 2005 The Institute of Medicine Study (IOM) on noise and military service, indicating that current knowledge of cochlear physiology does not provide sufficient scientific basis for the existence of delayed-onset hearing loss. The examiner noted the IOM did not rule out that delayed-onset might exist, but because the requisite longitudinal animal and human studies have not been done, and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for [finding the Veteran had] a delayed-onset hearing loss. The examiner opined the Veteran’s significant civilian occupational and recreational noise exposure and presbycusis (the aging process) are the more likely etiology for his hearing loss. The examiner also noted that in most cases tinnitus is accompanied by measurable hearing loss, and here there was no significant threshold shift in service. It is not in dispute that the Veteran has/had a hearing loss disability (such is shown by official audiometry) and tinnitus (during this appeal). As the Veteran’s MOS in service was weapons infantryman; it may reasonably be conceded he was subjected to the associated with weapons-firing training. What remains necessary to substantiate his claim of service connection for bilateral hearing loss and tinnitus is competent evidence that they are related to his service/noise trauma therein. See Shedden, 381 F.3d at 1167. The evidence does not show that a hearing loss disability or tinnitus was manifested in service. The Veteran’s STRs, including his October 1963 separation examination report, are silent for complaints, treatment, findings, or diagnosis of hearing loss or tinnitus. Likewise, a hearing loss disability and tinnitus are not shown to have been manifested within a year following the Veteran’s separation from service, and postservice continuity of sensorineural hearing loss and tinnitus is not shown. While the Veteran may be competent to report a perception of a reduction of hearing acuity, he is not competent to establish by his accounts of remote perceptions that he has had continuity of a hearing loss disability since service; under 38 C.F.R. § 4.85 hearing loss disability must be established by specified audiometry. He initially reported becoming aware of reduced hearing around 1992; and hearing loss disability was first diagnosed based on the specified audiometry in 2010 (over 45 years after hiss separation from service). The October 2017 private opinion (reporting that the Veteran’s tinnitus became manifest in service) is inconsistent with the November 2010 VA examination notation that the Veteran reported he first noticed tinnitus around 1998. The earlier clinical notation in 2010 merits greater probative value, by virtue of being more contemporaneous, and by the fact that the October 2017 private provider’s statement was provided based entirely on the Veteran’s self-report provided in connection with his seeking medical support in the compensation-seeking process. Significantly, January and August 2016 VA treatment records note the Veteran denied tinnitus, and continuity of tinnitus since service simply is not shown. Therefore, service connection for hearing loss and tinnitus on the basis that they became manifest in service and persisted, or on a presumptive basis (as chronic diseases under 38 U.S.C. § 1112, or based on continuity under 38 C.F.R. § 3.303 (b), is not warranted. Whether, without evidence of onset in service and continuity thereafter, a current hearing loss or tinnitus may be related to remote service/exposure to noise therein is a medical question, beyond the realm of common knowledge, and incapable of resolution by lay observation. See Jandreau, 492 F.3d at 1377. The Veteran is a layperson; his own opinion in the matter is not competent evidence. While a private provider has related the Veteran’s bilateral hearing loss and tinnitus to his service, the opinion is based on an incomplete medical history (not acknowledging his long-term postservice exposure to occupational and recreational noise exposure, or accounting for the lengthy postservice interval before the Veteran’s hearing loss and tinnitus were first clinically noted. To the contrary, the private opinion notes the Veteran had no significant postservice exposure to unprotected occupational or recreational noise; therefore, the private opinion lacks probative value. The Board finds the opinions by the September 2014 and November 2017 VA examiners to be probative evidence. The examiners expressed familiarity with the Veteran’s record/medical history, and included rationale that cited to accurate factual data, including the Veteran’s report of significant long-term postservice occupational and recreational noise exposure, and his initial report of onset of a hearing loss around 1992, and identified a more likely etiology for the disability, an over 30-year history of postservice occupational (in coal mines and a mill) and recreational exposure to noise. The providers are medical professionals competent to offer the opinions. Therefore, the Board finds that the preponderance of the evidence is against the claims of service connection for bilateral hearing loss and tinnitus. Accordingly, the appeal in these matters must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.