Citation Nr: 20003170 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-14 251 DATE: January 14, 2020 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest during active service and an organic disease of the nervous system (sensorineural loss) was not manifest within one year of separation. A bilateral hearing loss disability is unrelated to service. 2. Tinnitus was not manifest during service and an organic disease of the nervous system was not manifest within one year of separation. Tinnitus is not related to service.   CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2019). 2. Tinnitus was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1959 to October 1962. Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability 2. Entitlement to service connection for tinnitus Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system, which are identified as “chronic diseases” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). “For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). The Veteran asserts that his bilateral hearing loss disability and tinnitus are the result of in-service exposure to hazardous noise, specifically while testing tank gun sights for accuracy and exposure to machine gun and small arms fire. The Veteran’s assertions with respect to in-service noise exposure are both competent and credible, and consistent with his personnel records. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Medical evidence of record indicates that there is a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 and a diagnosis of tinnitus. Service treatment records do not document any relevant complaints, symptoms, treatment, or diagnoses. A whisper voice test was performed upon enlistment, documented as 15/15 bilaterally. Audiological testing was performed upon the Veteran’s separation in July 1962. The Board has reviewed the results of this testing pursuant to the appropriate conversion from the presumed American Standards Association (ASA) to the standards set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The audiological testing did not reveal the presence of hearing loss or a hearing loss disability. Clinical evaluation upon separation revealed normal ears. The first objective evidence of a hearing loss disability under the provisions of 38 C.F.R. § 3.385 is a November 2016 VA audiological examination. The VA examiner opined that the Veteran’s current hearing loss disability was less likely than not related to his active service. The examiner cited service treatment records and the lack of any threshold shift. With respect to the Veteran’s tinnitus, the examiner concluded that it was at least as likely as not a symptom associated with the Veteran’s hearing loss, and thus, less likely than not related to service. The Veteran could not recall the date of onset of his tinnitus. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the November 2016 VA medical opinions that the Veteran’s hearing loss and tinnitus are not related to his active service as highly probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds these medical opinions to be highly probative as they are adequately supported by additional rationale. The Board has considered the lay statements of the Veteran regarding the hearing loss disability and tinnitus. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner’s opinions, which were based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner’s medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of either hearing loss or tinnitus during active service, or within a year of separation. The Veteran separated from active service in October 1962. Hearing loss and tinnitus were not noted during service. The Veteran did not have characteristic manifestations sufficient to identify the disease entity. 38 C.F.R. § 3.303 (b). Objective medical testing did not document a hearing loss disability until over fifty years after separation. In addition, the evidence does not show an onset of tinnitus for many years after separation. Here, there is no competent evidence of hearing loss, hearing loss disability, or tinnitus during service or within one year of separation. In sum, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus. The claims must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.