Citation Nr: 19123769 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 14-34 887 DATE: March 29, 2019 ORDER The claim of entitlement to service connection for bilateral hearing loss is denied. The claim of entitlement to service connection for bilateral tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s current hearing loss disability did not have its onset during service, is not causally related to his active service, and did not manifest within one year after separation from active service. 2. The Veteran’s current tinnitus disability did not have its onset during service, is not causally related to his active service, and did not manifest within one year after separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.385, 4.3 (2017). 2. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 4.3 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from June 1967 to June 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision from December 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in June 2014. A statement of the case (SOC) was issued on September 17, 2014, and the Veteran perfected his appeal on September 24, 2014. The Veteran testified before the undersigned via videoconference at a hearing in June 2016. A transcript of the hearing is of record. This case was last before the Board in March 2018. In the March 2018 Board decision, the Board remanded the case because there appeared to be outstanding post-service treatment records that would have help substantiate the Veteran’s claim. Specifically, at the Veteran’s June 2016 Board hearing, the Veteran explained that he had received treatment for his ears at Mercy Hospital shortly after discharge from service. The Veteran said he would obtain these records and submit them to the VA to include in the record. The undersigned held the record open for 30 days to allow submission of the additional evidence, but the Veteran did not submit the additional treatment records. Records for treatment of the Veteran’s ears were never previously requested. The Board remanded the case in order to avail the Veteran of the VA’s assistance in obtaining the records and to give the Veteran an opportunity to submit the additional evidence related to his claims of service connection for hearing loss and tinnitus. In May 2018, the RO sent the Veteran a letter requesting that the Veteran complete and return a VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), so the RO could obtain the additional treatment records. The Veteran did not respond to that request. The RO issued a supplementary statement of the case (SSOC) in December 2018, in which it detailed the efforts it made to contact the Veteran and obtain authorization to request the additional records. In February 2019, the Veteran’s representative submitted a statement saying that no further evidence of service connection was available and that the representative had no additional evidence or argument to present to the Board. The Veteran’s representative stated that they wished to rest the appeal on the record. The Board finds that the remand directives from the March 2018 Board decision were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The above noted issues have been returned to the Board at this time for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Even if the presumptive paths for establishing service connection are not available for the Veteran’s disability, the claim could be granted if the three elements of direct service connection are shown by an equipoise standard of evidence. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Service Connection for Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. In the December 2013 rating decision, the RO denied service connection for hearing loss because the Veteran’s hearing loss had not been linked to his time in service. That is, the evidence of record demonstrated that the Veteran’s hearing loss was not incurred in or caused by active service. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For purposes of VA service connection and compensation, a hearing loss disability is determined through audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. Service connection may not be found for disability due to hearing loss or impaired hearing unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. At the Veteran’s December 2013 VA examination, the examiner determined that the Veteran had sensorineural hearing loss in both ears. Thus, the Veteran fulfills the first requirement of service connection – a current disability. See 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The next question in this case is whether the Veteran had an incurrence or aggravation of his hearing loss during his active service. 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In the Veteran’s Reports of Medical Examination from his induction into service in June 1967 and from his separation examination in April 1969, the examiner’s clinical evaluations mark the Veteran’s ears and eardrums as normal. The Veteran’s audiometers from these examinations show the Veteran’s hearing to be within normal limits. Between the induction and separation examinations, there do not appear to be puretone threshold shifts reflective of a worsening in the Veteran’s hearing acuity under VA standards. See 38 C.F.R. § 3.385. On the Veteran’s Reports of Medical History from induction and separation, the Veteran reported that he did not have nor had he ever had ear trouble, running ears, or hearing loss. The only mention of hearing problems in the Veteran’s service treatment records (STRs) is in a medical note from September 1967. The Veteran complained of hearing loss, and the examiner determined that this was a result of bad hygiene habits. The examiner treated the Veteran, and after this treatment, the Veteran’s hearing was back to normal. There is no indication that this complaint was more than temporary or that it resulted in any continuing problems or any actual diagnosis of hearing loss. As mentioned above, the Veteran’s separation examination from two years later does not have any complaints or other indications of hearing loss. The record contains no other complaints, diagnosis, or treatment of hearing loss in the Veteran’s STRs or other medical evidence from the time of Veteran’s active service. However, the Veteran reports that he had noise exposure during service. Specifically, the Veteran reports that, for six months during service, he was assigned a unit that shredded classified documents for 8 hours a day, 5 days a week. The shredding machine was reportedly as large as a room and very loud. The Veteran was given ear coverings that he says were inadequate to protect his ears. At the Veteran’s June 2016 Board hearing, the Veteran also reported that, during training, he was exposed to cannon fire from three or four Howitzer cannons. He said they would shoot 8 to 10 rounds from the cannons on a weekly basis, and he was not issued hearing protection for this training. The Veteran is competent to give evidence where he has knowledge of facts or circumstances and where he conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). As such, the Board accepts that the Veteran was exposed to loud noise in service. Therefore, this issue turns on the third element of service connection—the “nexus” requirement—and whether the Veteran’s currently diagnosed hearing loss is causally related to his in-service noise exposure. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The December 2013 VA examiner determined that it was not likely that the Veteran’s current hearing loss is not related to his active service. The VA examiner noted that the Veteran’s hearing was normal at enlistment and separation. She also noted that, between the Veteran’s in-service examinations at induction and separation, the Veteran’s hearing had not changed more than 10dBHL. Thus, the examiner said it was less likely than not that the Veteran’s current hearing loss was the result of noise exposure during active service. At the June 2016 Board hearing, the Veteran testified that he started noticing problems with hearing loss after service, and he did not remember having trouble with hearing while he was in service. He thinks that, during service, he had problems with wax build up in his ears, as he still does today. The Veteran testified that he first told a doctor about his problems with hearing loss at a VA hospital five years before the Board hearing. This is consistent with the evidence of record; the first time on record that the Veteran reported problems with his ears at a medical appointment was at a VA History & Physical (H&P) appointment in February 2011 when the Veteran complained of ringing in his ears. At the June 2016 Board hearing, the Veteran also said he started having problems with hearing loss about two or three years after service. He said that was when his wife noticed he was having problems with hearing loss. He had married his wife six months after separation from service. Since the Veteran said that the first time he remembers noting any hearing loss was two or three years after service, there is no evidence of record concerning any hearing loss from the year immediately following the Veteran’s service. Thus, service connection may not be presumed here based on manifestation within one year of discharge from active service. The one-year presumption for sensorineural hearing loss under 38 C.F.R. §§ 3.307 and 3.309 is therefore not applicable in this case. See 38 U.S.C. §§ 1101, 1112. The Board acknowledges the Veteran’s contention that his hearing loss was related to his active service. However, the Veteran, as a layperson, is not competent to give a medical opinion on the etiology or cause of his hearing loss. The Veteran lacks the adequate medical expertise to render a medical opinion as to the etiology or cause of his hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). As such, the Veteran’s assertions as to the origins of his hearing loss are not competent or probative evidence to determine whether there is a “nexus” or causal relationship between his current hearing loss and his in-service noise exposure. Moreover, the Board finds the opinion of the December 2013 VA examiner’s opinion to be the most probative evidence of record concerning whether the Veteran’s current hearing loss disability is causally related to his time in service. The December 2013 VA examiner’s rationale is logical and well-reasoned and based on consideration of the Veteran’s claims file, reported history, and service treatment records. Thus, the Board is satisfied that the December 2013 VA examiners’ opinion is competent, credible, persuasive, and probative for deciding this appeal. Based on the above, the evidence of record does not show that the Veteran’s current hearing loss is causally related to his in-service noise exposure. Thus, the Veteran does not fulfill the third requirement of service connection – the “nexus” requirement. See 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In short, although the Veteran may have a current disability of bilateral sensorineural hearing loss and exposure to noise during his active service, the preponderance of the evidence of record in this case does not demonstrate that the Veteran’s current bilateral hearing loss was incurred in, aggravated by, or otherwise the result of his active service. Therefore, the Veteran’s claim of entitlement to service connection for bilateral hearing loss must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Service Connection for Bilateral Tinnitus The Veteran contends that he is entitled to service connection for tinnitus. In the December 2013 rating decision, the RO denied service connection for tinnitus because the Veteran’s tinnitus was not incurred in or caused by his active service. In a VA History & Physical (H&P) treatment note from February 2011, the Veteran complained of ringing in his ears. In a Primary Care Outpatient Note from August 2013, the Veteran again reported there was ringing in his ears, and the examiner reported an impression of tinnitus in the Veteran. The Veteran has consistently reported tinnitus or ringing in his ears at other VA medical appointments from 2013 through the present. The Veteran is competent to provide lay evidence of tinnitus, as this condition is observable by his own senses. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Also, at the Veteran’s December 2013 VA examination, the Veteran reported recurrent tinnitus. The examiner noted that the Veteran reported gradual awareness of bilateral ringing, starting about 4 or 5 years before this December 2013 VA examination. Thus, the Board acknowledges that the Veteran has a current disability of bilateral tinnitus, and the first element of service connection has been met. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Regarding the second element of service connection – an in-service incurrence or aggravation of a disease or injury – the Veteran’s service treatment records (STRs) contain no complaints, diagnosis, or treatment of tinnitus during the Veteran’s active service. The Veteran’s Reports of Medical Examination from induction and separation mark the Veteran’s ears as normal, and in his Reports of Medical History, the Veteran reported that he had never experienced any ear trouble. However, as discussed earlier with hearing loss, the Board accepts that the Veteran was exposed to loud noise in service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Thus, this claim turns on the third element of service connection — the “nexus” requirement — which here concerns whether the Veteran’s tinnitus was causally related to his in-service noise exposure. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The December 2013 VA examiner determined that it is less likely than not that the Veteran’s tinnitus was caused by or the result of his in-service noise exposure. There is also no complaint, diagnosis, or treatment of tinnitus in the year immediately following his time in service. Thus, the one-year presumption for tinnitus under 38 C.F.R. §§ 3.307 and 3.309 is not applicable here. See 38 U.S.C. §§ 1101, 1112. In a statement from March 2015, the Veteran’s wife said that, after being married 10 or 12 years, the Veteran told her about a buzzing sensation in his ears, and she stated that he only reported the problem to the VA after living with it for years. However, in another statement from June 2016, the Veteran’s wife said, by contrast, that the Veteran told her about the ringing in his ears when they were married in 1970. In weighing credibility, the VA may consider inconsistent statements and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Therefore, because the Veteran’s wife’s statements concerning the Veteran’s tinnitus symptoms are not credible, they are not entitled to probative weight. Furthermore, there is no objective evidence of record showing any complaint, diagnosis, or treatment of tinnitus or ringing in the ears in the 42 years between the Veteran’s time in service (1967-1969) and his aforementioned VA History & Physical (H&P) treatment note from February 2011. Under Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim such that it weighs against the claim. The Board acknowledges the Veteran’s contention that his tinnitus is related to his active service. However, as with hearing loss, the Veteran, as a layperson, is not competent to give a medical opinion on the etiology or cause of his tinnitus. The Veteran lacks the adequate medical expertise in this case to render a medical opinion on the etiology of his tinnitus. See Jandreau, 492 F.3d at 1376-77. As such, the Veteran’s assertions concerning the origins of his tinnitus are not competent or probative evidence to determine whether there is a “nexus” or causal relationship between his current tinnitus and his in-service noise exposure. As discussed earlier with hearing loss, the Board finds the opinion of the December 2013 VA examiner to be the most probative evidence of record concerning whether the Veteran’s tinnitus is causally related to his active service because the VA examiner’s opinion is well-reasoned and based on the record. Based on the above, the evidence of record does not show that the Veteran’s current tinnitus is causally related to his in-service noise exposure. Thus, the Veteran does not fulfill the third requirement of service connection – the “nexus” requirement. See 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). As with hearing loss, although the Veteran may have a current tinnitus disability and exposure to noise during service, the preponderance of the evidence of record in this case does not demonstrate that the Veteran’s tinnitus was incurred in, aggravated by, or otherwise the result of his active service. Therefore, the Veteran’s claim of service connection for tinnitus must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of service connection for tinnitus, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel