Citation Nr: 20006149 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 19-23 442 DATE: January 28, 2020 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The evidence does not demonstrate that the Veteran has or had right ear hearing loss at any time during the appeal period. 2. The preponderance of the evidence is against finding that left ear hearing loss began during active service or within one year of discharge, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise 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, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1989 to March 1994. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). 1. Entitlement to service connection for bilateral hearing loss A. Right Ear A review of the medical evidence of record does not establish a diagnosis of right ear hearing loss at any time during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). He was afforded a VA examination to address his claimed hearing loss in June 2017. VA Hearing Loss and Tinnitus examination, June 2017. At that time, audiometric testing did not show hearing loss for VA purposes under 38 C.F.R. § 3.385. This is the only audiogram during the appeals period. The Veteran has not provided any evidence since the June 2017 VA examination. The Board has also thoroughly reviewed the remainder of the claims file and finds that there is no audiometric test that shows right ear hearing loss for VA purposes. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of audiology and how to perform and interpret audiometric testing. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report his symptoms, he is not competent to attribute those complaints to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). He is not competent to diagnose himself with right ear hearing loss for VA purposes. Further, his opinion would be significantly outweighed by the lack of diagnoses from the VA audiologist, who clearly holds the level of medical expertise to address the nature and etiology of the Veteran’s complaints. As the first element of Shedden/Caluza is not met for the right ear hearing loss claim, the remaining questions of in-service disease or injury and medical nexus are irrelevant. In reaching this conclusion, 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. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Left Ear The Board has reviewed the record and with regard to a present disability, the June 2017 VA examination report shows that the Veteran had hearing acuity of 45dB at 4000Hz. VA Hearing Loss and Tinnitus examination, June 2017. This constitutes hearing loss for VA purposes under 38 C.F.R. § 3.385. The first element of Shedden/Caluza has been met. With regard to an in-service event or injury, the Board’s review of the Veteran’s service treatment records is negative for any complaints of hearing loss or other ear problems. However, his DD-214 shows that he received a rifle expert badge and a pistol expert badge. These awards suggest exposure to loud noises from gunfire. Thus, the second element of Shedden/Caluza is also met. However, despite the current diagnosis and in-service noise exposure, there is no evidence of a medical nexus to support a grant of service connection. Significantly, the Veteran was afforded a VA examination in June 2017 to address the etiology of his audiology complaints. The June 2017 examiner noted the Veteran’s hearing loss but was unable to link it to service because he had no significant threshold shift in service. Further, she noted that he had significant recreational post-service noise exposure. The Board notes that the Veteran disputed this post-service noise exposure in his August 2019 VA Form 9. However, as the examiner relied on the lack of threshold shifts in service, the Board finds that answering the question of whether the Veteran had post-service recreational noise exposure is not required. As there were no complaints of hearing-related symptoms until years after service and no in-service threshold shifts, the examiner was unable to link the Veteran’s left ear hearing loss to his conceded in-service noise exposure. There are no other pieces of medical evidence discussing the etiology of the Veteran’s left ear hearing loss. Consideration has been given to the Veteran’s contentions that his current left ear hearing loss is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of audiology. See Kahana, supra. While the Veteran is certainly competent to report that he had in-service noise exposure and that he currently has left ear hearing loss, he is not competent to link those complaints to a particular diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. Moreover, they are outweighed by the negative opinion from the VA audiologist who clearly has the relevant expertise. The Board has also considered continuity of symptomatology as hearing loss is considered a chronic disease based on 38 C.F.R. § 3.303. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303(a) (2018). 38 C.F.R. § 3.303(a) (2016); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (holding that "the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an '[o]rganic disease[] of the nervous system.'").. Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of postservice continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptoms. Given that this condition was not noted during service, continuity of symptomatology has not been established. There is also no evidence of left ear hearing loss within one year of discharge to warrant a grant of service connection on a presumptive basis. Accordingly, the Board finds that the claim of entitlement to service connection for left ear hearing loss must be denied. In reaching this conclusion, 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. 2. Entitlement to service connection for tinnitus The Board has reviewed the record and with regard to a present disability, the June 2017 VA examination report diagnosed the Veteran with tinnitus. VA Hearing Loss and Tinnitus examination, June 2017. The first element of Shedden/Caluza has been met. With regard to an in-service event or injury, the Board’s review of the Veteran’s service treatment records is negative for any complaints of tinnitus or other ear problems. However, his DD-214 shows that he received a rifle expert badge and a pistol expert badge. These awards suggest exposure to loud noises from gunfire. The second element of Shedden/Caluza is also met. Despite the current diagnosis and in-service noise exposure, there is no evidence of a medical nexus to support a grant of service connection. Significantly, the Veteran was afforded a VA examination in June 2017 to address the etiology of his audiology complaints. At that time, the Veteran could not remember the onset of his tinnitus, other than that it was about 15 years prior. As the Veteran reported the onset of tinnitus approximately 8 years after his separation from service, she was unable to link his current tinnitus to service. In supporting this opinion, she cited to an Institute of Medicine study. The Board notes that subsequent to the rating decision denying service connection for tinnitus, the Veteran reported that he had experienced tinnitus since service. VA Form 9, August 2019. As this changed onset date only occurred after the Veteran was denied service connection based on his reported onset date, the Board finds it is less credible than the date originally given to the VA examiner. Further, the Veteran did not support this new assertion with any lay or medical evidence showing an earlier onset. Consideration has been given to the Veteran’s contentions that his current tinnitus is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive causation findings based on medical knowledge of audiology. See Kahana, supra. While the Veteran is certainly competent to report that he had in-service noise exposure and that he currently experiences, he is not competent to link those complaints to a particular diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. Although he is competent to report ringing in his ears, he has not credibly claimed that he has experienced ringing in his ears since service to support a nexus. The Board has also considered continuity of symptomatology as hearing loss is considered a chronic disease based on 38 C.F.R. § 3.303. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303(a) (2018). 38 C.F.R. § 3.303(a) (2016); see Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (holding that "the Secretary has made clear that sensorineural hearing loss is considered subject to § 3.309(a) as an '[o]rganic disease[] of the nervous system.'").. Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of postservice continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptoms. Given that this condition was not noted during service, continuity of symptomatology has not been established. Accordingly, the Board finds that the claim of entitlement to service connection for tinnitus must be denied. In reaching this conclusion, 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.