Citation Nr: 20007645 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-53 797 DATE: January 29, 2020 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran served on active duty from Jun 1972 to June 1974. 2. Bilateral hearing loss was not shown during service, not shown to a compensable degree within one year of service, symptoms were not continuous since service, and bilateral hearing loss is not otherwise caused by or related to any incident of service. 3. The Veteran had noise exposure in service; tinnitus has been continuous since service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in service. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. Tinnitus was incurred in service. 38 U.S.C. §§ 1112, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In September 2019 the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss and tinnitus are recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Bilateral Hearing Loss For VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs, and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran has claimed entitlement to service connection for bilateral hearing loss. He has been diagnosed with bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. In addition, his service personnel records establish that he was a lance missile crewman. As such, the requirement of a current disability has met, and noise exposure is conceded. As to in-service incurrence, the service treatment records (STRs) reflect no hearing complaints. All examinations and audiograms reveal hearing within normal limits/no ear complaints. Further, the Veteran does not contend that he sought treatment for hearing loss during service. Therefore, the second element of direct service connection has not been met. As to presumptive service connection based on continuity of symptomatology, the Veteran testified that he has been wearing hearing aids for about three to four years. The earliest recorded diagnosis of bilateral hearing loss was in a May 2015 VA examination report. A September 2016 VA treatment record noted that he reported hearing loss “for many years.” A June 2015 letter from a private physician, Dr. S. stated that the Veteran had been treated for tinnitus since 1995 and that he has a current diagnosis of hearing loss, but it did not state when the onset of hearing loss was, or when treatment for hearing loss began. Importantly, he did not testify that he had hearing loss during service and that it has been ongoing ever since. The STRs reflected that he was discharged from service with clinically normal hearing. Thus, even assuming that his hearing loss began in 1995, that would mean there was a 20 plus-year period between service and the onset of hearing loss, which is one factor that weighs against a finding of continuity of symptomatology. The Board’s reliance on multiple factors, only one of which is an absence of complaints or treatment during the years after service, is consistent with the statutory and regulatory requirements to consider all evidence of record, as well as the Court’s precedential decisions. In this regard, the Veteran specifically indicated in a May 2015 written statement that he received VA treatment in 1975-1976 but it was not for hearing loss or any hearing related complaints. To the extent that the Veteran contends that he had symptoms of hearing loss in service and since, the medical evidence of record does not support this contention. For these reasons, the medical evidence does not support presumptive service connection under 38 C.F.R. § 3.303(b) based on either “chronic” symptoms in service or “continuous” symptoms since service have not been met. Additionally, the medical evidence does not show that hearing loss manifested to a compensable (i.e., at least 10 percent) degree within one year of service separation. As noted, the earliest record of hearing loss was not until May 2015 with evidence that he had hearing problems some time prior to that, but not within one year of service. As noted above, the Veteran specifically denied any hearing loss in 1975 or 1976. Therefore, the medical evidence does not support presumptive service connection under the provisions of 38 C.F.R. § 3.309(a). On the question of a medical nexus between the current bilateral hearing loss and service, the May 2015 and September 2016 VA examiners opined that it was less likely than not that the Veteran’s hearing loss was due to or a result of in-service noise exposure. The audiologists reasoned that his hearing was normal in service and there were no hearing complaints in service. Further, it was noted that the Institute of Medicine concluded that based on current knowledge of cochlear physiology, there was not sufficient evidence from longitudinal studies to determine whether permanent noise-induced hearing loss could develop much later in one’s lifetime, long after the cessation of that noise exposure. Instead, based on anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that such delayed effects occurred. On the other hand, a June 2014 private medical opinion indicated that it was very likely that a portion of the Veteran’s hearing loss was due to in-service noise exposure; however, no rationale was offered for that opinion. A conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion. The Board has weighed the two VA opinions against the June 2014 private opinion and places more weight on the VA opinions as they were offered with a rationale, including interpretation of scientific research in the area of hearing loss. Accordingly, the Board accords significant probative weight to the VA opinions and lesser probative weight to the private opinion. The Board has considered the Veteran’s lay statements that hearing loss was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Tinnitus The Veteran claims that service connection is warranted for tinnitus because it began in service as a result of acoustic trauma and has been present ever since. A June 2015 letter from a private physician, Dr. S. stated that the Veteran has noise induced tinnitus and VA treatment records and examination reports dated in May 2015 and September 2016 reflected a current diagnosis of tinnitus. Further, tinnitus is a disability for which self-diagnosis is appropriate. As such, a current disability has been shown. Next, the evidence supports a finding of in-service acoustic trauma. Service records reflect the Veteran’s in-service specialty as a lance missile crewman. A December 2014 buddy statement from a fellow soldier demonstrated the different types of noise exposure the Veteran experienced during service, including due to heavy equipment, vehicles and missiles. A veteran is competent to report that which he perceives through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). There is no evidence which tends to contradict the Veteran’s statements. As such, the second element of service connection has been met. Finally, as to continuity, the medical records reflect that the Veteran reported tinnitus began around 1982, shortly after he got married; however, he testified that it had been present long before that, but he did not know what tinnitus was and did not realize he was not just hearing crickets. While there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms since separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). A September 2016 VA examination report indicated that the Veteran’s tinnitus was less likely due to military noise exposure because there is no objectively verifiable noise injury during service. A May 2015 VA examination report stated that the tinnitus was a symptom of hearing loss and it was less likely than not that tinnitus was caused by service. The examiner reasoned that the Veteran’s hearing loss not associated with noise-induced pathology that would result in tinnitus and medical literature does not support the theory of delayed onset tinnitus. The Board does not need to reach any conclusion regarding the VA examination reports because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease tinnitus (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of tinnitus since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of tinnitus since service; therefore, tinnitus is presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since service separation, all other service connection theories are rendered moot. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.