Citation Nr: 20005176 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 18-22 538 DATE: January 23, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Bilateral sensorineural hearing loss did not become manifest during service or to a compensable degree within the first year after discharge from service and is not etiologically related to service. 2. Tinnitus did not become manifest during service and is not etiologically related CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (West 2012); 38 C.F.R. §§ 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to January 1977. Service Connection for Bilateral Hearing Loss and Tinnitus Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Sensorineural hearing loss is a condition that is considered chronic, and therefore, will be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10 percent disabling) within one year after discharge from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 264, 271 (2015) (specifying that sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system subject to § 3.309(a)). This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385 above) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. 155, 159. Regarding the claim for tinnitus, it is defined as “a noise in the ear, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary (Dorland’s) 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of it, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). As an initial matter, the evidence establishes the Veteran has current diagnoses of bilateral sensorineural hearing loss and tinnitus, as indicated in his November 2015 VA audiological examination. Hence, the first element of service connection has been established. Therefore, the merits of this claim turn on whether the currently diagnosed hearing loss and tinnitus are attributable to his military service pursuant to any theory of entitlement. As to establishing that his diagnosed hearing loss and tinnitus are the result of his military service, the Veteran sets forth the argument that these disabilities are the result of military noise exposure during his active duty. The Board notes that the Veteran’s DD Form 214 shows that his military occupational specialty was as a bulk fuel man and a fuel system maintenance man. In evaluating the Veteran, the Board notes the November 2015 VA examiner indicated the Veteran performed duties in the military of low noise exposure. Nevertheless, the Board finds that Veteran’s statements with regards to his duties in service are consistent with the circumstances of his service and, arguably, led to some degree of exposure to noise. Thus, military noise exposure is conceded. The Veteran’s service treatment records are silent for any diagnoses of, complaints of, or treatment for hearing loss or tinnitus. As noted in the November 2015 VA examination, there was no evidence of hearing loss for VA purposes upon separation in January 1977. See January 1977 Separation Examination. Following his separation from service in 1977, the first treatment records noting complaints of hearing loss or tinnitus are not until August 2015, approximately 38 years later, when the Veteran filed his claim for service connection for these disorders. See August 2015 VA treatment record. Thus, based on the record, there is no indication that the Veteran had hearing loss during service or within a year of his separation. Given the extensive amount of time after service before the Veteran presented with hearing and tinnitus complaints is significant and the Board finds that it weighs against the Veteran’s claim to establish a claim based on a presumption. See Maxson v. Gober, 230 F.3d 1330 (2000) (finding that a prolonged period without medical complaint, and the amount of time that elapsed since service can be a factor for consideration in rebutting the presumption of service connection). Also, there is no evidence to demonstrate that the Veteran’s hearing loss reached the level of 10 percent, which is required under 38 C.F.R. § 3.309(a) to be entitled to the presumption. See 38 C.F.R. § 4.85. Furthermore, even though the Board acknowledges the Veteran’s report that his current hearing loss relates to his military service, the Board finds that the Veteran is not competent to medically attribute his bilateral sensorineural hearing loss to his in-service military noise exposure; such an etiology determination requires medical expertise, which the record does not support. See 38 C.F.R. § 3.159 (a)(1) versus (a)(2). Moreover, chronicity and continuity of the bilateral hearing loss since service is not established, especially where the Veteran has not submitted any evidence to demonstrate that his symptoms have been continuous since service. In sum, based on the record, the Veteran’s bilateral hearing loss did not manifest during or within the year after his separation from service, and the evidence of record does not establish that he has had continuous difficulty hearing since he separated from service. He is therefore not entitled to service connection on a presumptive basis, including on the basis of continuity of symptomatology. The failure to establish a presumptive basis of service connection, with regard to the Veteran’s disability, does not preclude the Veteran from establishing service connection on another basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 U.S.C. § 1113 (b). Instead, the Veteran may establish direct service connection to the current disability. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993), which held that the Veteran may submit evidence that the disability is causally related to service. As noted above, post-service VA treatment records show the Veteran sought treatment for hearing loss beginning in 2015. However, these records do not contain any etiological opinions attributing either hearing loss or tinnitus to his military service. In November 2015, the VA examiner noted the Veteran’s report of noise exposure during his military service. The examiner ultimately concluded that hearing loss and tinnitus are less likely than not due to the Veteran’s military service due to the lack of hearing loss for VA purposes evidenced at either entrance or separation. The examiner also noted the Veteran’s low risk of noise exposure during service. Consequently, when considering all the above, the VA examiner concluded that the Veteran’s hearing loss and claimed tinnitus are not related to acoustic trauma during service. The examiner further noted that the tinnitus was a symptom of the Veteran’s hearing loss which, as noted, is not attributable to his military service. Based on the foregoing, the Board concludes that the preponderance of the evidence weighs against the service connection claims. There is no competent medical evidence of record reflecting that the Veteran demonstrated bilateral hearing loss to a compensable degree within one year of discharge from active duty, and the VA examiner’s opinion, the only etiological opinion of record, also weighs against this finding as there is no indication the Veteran sought treatment for hearing loss or tinnitus until 2015, approximately 38 years after his separation from service. Otherwise, there is no medical evidence of record indicating that the Veteran’s bilateral hearing loss and tinnitus were caused or aggravated by his active duty service. Accordingly, entitlement to direct service connection under 38 C.F.R. § 3.304 for both conditions or to presumptive service connection for bilateral hearing loss under 38 C.F.R. § 3.309(a) is not shown. The Veteran has asserted his personal belief that he has hearing loss and tinnitus due to noise exposure in service. The Veteran is competent to report noise exposure in service, and he is competent to report difficulty hearing since, but he is not competent as a layperson to opine regarding the etiology of hearing disability that demonstrably became manifest many years after service. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In sum, the Board finds that the Veteran has failed to meet the third element of service connection, the nexus requirement, that attributes his diagnosed disorders to his military service. Accordingly, the criteria for service connection are not met and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.