Citation Nr: A19001584 Decision Date: 09/26/19 Archive Date: 09/26/19 DOCKET NO. 190308-13990 DATE: September 26, 2019 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise shown to be etiologically related to an in-service injury, event, or disease. 2. The Veteran’s tinnitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise shown to be etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1951 to March 1955. The Board notes that the rating decision on appeal was issued in September 2017 and a statement of the case was issued after February 19, 2019, specifically on February 21, 2019. In March 2019, within the time allowed for filing a substantive appeal, the Veteran elected the modernized review system and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran believes he has bilateral hearing loss which is related to his active service, specifically in-service noise exposure. In this regard, in a May 2017 statement, the Veteran reported, in part, during service he was trained in motion picture production and assigned to a squadron which produced motion picture news releases, training films, and operational film reports, and this production included photography, editing, and sound production. He further explained that during the editing and sound production work it was pretty common place to monitor sound tracks at unusually higher volume levels in order to determine any sound flaws that would need attention before the final release. In a June 2017 statement, the Veteran described that during service his unit produced news, training, human interest, and training motion pictures, and this included all phases of production, specifically camera, editing, sound recording, and lab finishing. In a June 2017 statement, the Veteran described the sound work involved listening intently to high volume mixing tracks in order to eliminate any small flaws or undesirable sounds, and that he believed this probably started the hearing loss process. He also described that after discharge in 1955, he found the Air Force training and experience obtained allowed him to pursue civilian occupations in the same motion picture fields for the next 20 plus years. Similarly, in a November 2017 notice of disagreement, the Veteran reported, in part, that during service he was selected to be further trained in still photography and in motion picture specialization, and that his work in motion pictures “became the embryo of what was later to surface as [his] hearing disability.” In this regard, he described a post-service employment history in education film production, weekly religious television program production, additional television commercials and Air Force training films (as a civilian) and additional public relations, television commercials, television programs and training films. He reported that these different post-service employment stints covered 1952 through 1978. He described that the sound production portion of motion pictures included voice, music, and special effects, which were produced separately and mixed together to enhance the picture content, and that these sounds were separately recorded and subsequently mixed, and high volumes were used as the tracks were reviewed for any flaws or unwelcome noise or sounds. He described that the final editing and mixing functions could involve many hours to produce only a few finished minutes. Overall, the Veteran reported, in his November 2017 notice of disagreement, that his hearing loss was caused by long term exposure to loud sounds, which occurred from the time he started his type work as assigned by the Air Force and until his motion picture production worked ended 26 years later. He also stated, in part, that had he not been trained in this work in the Air Force he would not have been able to pursue it was a civilian. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The question for the Board is whether the Veteran has bilateral hearing loss disability that manifested to a compensable degree in service or within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether it is otherwise shown to be etiologically related to an in-service injury, event, or disease. In this regard, May 2017 private audiometric testing and August 2017 VA audiometric testing each demonstrated the Veteran has hearing loss “disability” for VA purposes under the provisions of 38 C.F.R. § 3.385 for each ear. The Board concludes that, while the Veteran has bilateral hearing loss, which is a chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a) as an organic disease of the nervous system, it did not manifest to a compensable degree within the presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). In this regard, the Veteran has not reported his hearing difficulty began during service and continued after service, or that its onset was within one year after separation from service. In fact, conversely, in a June 2017 statement, the Veteran reported, in part, his hearing disability was never obvious while in the Air Force from March 1951 to March 1955. In the June 2017 statement, he further described that his hearing loss developed gradually over his work years and was never specifically medically treated. Similarly, in an undated VA audiologic case history form, received by VA in May 2017, the Veteran reported his hearing loss began gradually. Further, a February 2000 VA treatment record documented the Veteran had wax in both ears but did not document a complaint of hearing loss. Similarly, an August 2001 VA treatment record showed that the Veteran denied any change in his ability to hear. Further, a January 2004 VA treatment record documented, in part, the Veteran denied hearing loss, ear pain, and discharge from ears. A November 2011 VA treatment record documented the Veteran’s hearing was fair. In this regard, the first demonstration of bilateral hearing loss for VA purposes is reflected in the 2017 audiometric testing discussed above. Thus, the evidence reflects the Veteran’s bilateral hearing loss began decades after his separation from service and decades outside of the applicable presumptive period. Service connection for bilateral hearing loss may still be granted on a nonpresumptive direct-incurrence basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s bilateral hearing loss and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). In this regard, the August 2018 VA examiner could not provide a medical opinion regarding the etiology of the Veteran’s right ear hearing loss and left ear hearing loss without resorting to speculation as no audiograms were available to review during the Veteran’s service dates. However, the examiner provided a reason for his inability to provide an etiological opinion. See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). There are instances where a definitive opinion cannot be provided because required information is missing, or can no longer be obtained, as is the case here because the Veteran’s service treatment records were determined to have been destroyed in a fire. Id. Further, the VA examiner’s opinion clearly indicates all procurable and assembled evidence was considered that might reasonably assist in the medical analysis, specifically he reviewed the VA e-folder (VBMS or Virtual VA), the Computerized Patient Record System (CPRS), and Defense Occupational and Environmental Health Readiness System (DOEHRS). As the duty to assist does not extend to requiring a VA examiner to render an opinion beyond what may be reasonably concluded from the procurable medical evidence, the Board finds a remand is unnecessary for another VA medical opinion. Further, the Board notes that there were no complaints, diagnoses, or treatment for a hearing loss in either ear, for decades following service separation. As discussed above, a January 2004 VA treatment record documented, in part, the Veteran denied hearing loss and a November 2011 VA treatment record documented the Veteran’s hearing was fair. The first evidence of the presence of hearing loss for VA purposes was demonstrated in 2017 audiometric testing. Further, as discussed above, post-service, the Veteran reported significant occupational noise exposure consisting of 26 years in motion picture production, which was the same source of noise exposure that he reported during service. Thus, the Board finds that the evidence weighs against a finding that hearing loss is etiologically related to the Veteran’s service. Currently, the claims file does not contain a medical opinion establishing a link between his bilateral hearing loss and in-service noise exposure. While the Veteran believes his bilateral hearing loss is related to in-service noise exposure, he has not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, specifically the VA treatment records which reflect the Veteran’s bilateral hearing loss onset decades after his separation from service. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is not warranted for bilateral hearing loss. 2. Entitlement to service connection for tinnitus is denied. The Veteran believes he has tinnitus which is related to his active service. In this regard, as discussed above, in various statements, the Veteran reported during service he was trained in motion picture production and that during the editing and sound production work it was pretty common place to monitor sound tracks at unusually higher volume levels in order to determine any sound flaws that would need attention before the final release. However, he also reported he did this type of work for 26 years post service. The question for the Board is whether the Veteran has tinnitus that manifested in service, to a compensable degree within the applicable presumptive period, whether continuity of symptomatology has existed since service, or whether it is otherwise shown to be etiologically related to an in-service injury, event, or disease. In this regard, the August 2017 hearing loss and tinnitus disability benefits questionnaire documented the Veteran reported recurrent tinnitus. Further, tinnitus is the type of disability which a lay person may identify. Charles v. Principi, 16 Vet. App. 370 (2002). The Board concludes that, while the Veteran has tinnitus, which is a chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a) as an organic disease of the nervous system, it did not manifest to a compensable degree within the presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker, 708 F.3d at 1338-39; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). In this regard, the Veteran has not reported his tinnitus onset during service and continued after service, or that it onset within one year after separation from service. In fact, conversely, the August 2017 examiner documented that the Veteran reported his tinnitus onset 20 years ago and that he was unsure of the circumstances of onset. Similarly, in an undated VA audiologic case history form, received by VA in May 2017, the Veteran reported his tinnitus began a long time ago, but did indicate it began during service or shortly thereafter. Further, a January 2004 VA treatment record documented, in part, the Veteran denied tinnitus. In this regard, the first complaint of tinnitus is reflected in the Veteran’s May 2017 application for benefits. However, as the Veteran reported his tinnitus onset 20 years ago during the August 2017 examination, such would provide an onset date in approximately 1997, which was 44 years after the Veteran’s separation from service. Thus, the evidence reflects the Veteran’s tinnitus onset decades after his separation from service and decades outside of the applicable presumptive period. Service connection for tinnitus may still be granted on a nonpresumptive direct-incurrence basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a), (d). In this regard, the August 2018 VA examiner could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation as no audiograms were available to review during the Veteran’s service dates. However, the examiner provided a reason for his inability to provide an etiological opinion. See Jones, 23 Vet. App. at 391. As discussed above, there are instances where a definitive opinion cannot be provided because required information is missing, or can no longer be obtained, as is the case here as the Veteran’s service treatment records were determined to have been destroyed in a fire. Id. Further, the VA examiner’s opinion clearly indicates all procurable and assembled evidence was considered that might reasonably assist in the medical analysis, specifically he reviewed the VA e-folder (VBMS or Virtual VA), CPRS, and DOEHRS. As the duty to assist does not extend to requiring a VA examiner to render an opinion beyond what may be reasonable concluded from the procurable medical evidence, the Board finds a remand is unnecessary for another VA medical opinion. Again, the Board notes that there were no complaints, diagnoses, or treatment for tinnitus, for decades following service separation. As discussed above, a January 2004 VA treatment record documented, in part, the Veteran denied tinnitus, the first evidence of a complaint of tinnitus was in the Veteran’s May 2017 application for benefits and during the August 2018 examination the Veteran reported his tinnitus onset 20 years ago, which provides an onset date in 1997. Further, as discussed above, post-service, the Veteran reported significant occupational noise exposure consisting of 26 years in motion picture production, which was the same source of noise exposure that he reported during service. Thus, the Board finds that the evidence weighs against a finding that tinnitus is etiologically related to the Veteran’s service. Currently, the claims file does not contain a medical opinion establishing a link between his tinnitus and in-service noise exposure. While the Veteran believes his tinnitus is related to in-service noise exposure, he has not been shown to have the requisite medical knowledge and expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the competent medical evidence, specifically the VA treatment records which reflect the Veteran’s tinnitus onset decades after his separation from service. Thus, based on the reasons and bases discussed, the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. Accordingly, service connection is not warranted for tinnitus. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.