Citation Nr: A20017536 Decision Date: 11/25/20 Archive Date: 11/25/20 DOCKET NO. 200114-54255 DATE: November 25, 2020 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus was incurred in active service. 2. The Veteran’s current bilateral hearing loss disability has not been shown to be related to his active service, and an organic disease of the nervous system has not been shown to have manifested to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2019). 2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from June 1974 to June 1977. This appeal arose to the Board of Veterans’ Appeals (Board) from a July 2019 rating decision issued by the Agency of Original Jurisdiction (AOJ). In a January 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. The Veteran submitted a VA Form 20-0995 Decision Review Request: Supplemental Claim in February 2020, seeking service connection for tinnitus. In a letter mailed later that month, the Board notified the Veteran that the tinnitus claim was being processed pursuant to the Veteran’s January 2020 appeal of the July 2019 rating decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 may also 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). In addition, for veterans who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). 1. Tinnitus The Veteran contends that he has tinnitus, or ringing in the ears, which developed during active service as a result of harmful noise exposure. At the outset, the Board notes that the Veteran has credibly reported experiencing ringing in his ears during the pendency of the appeal. Moreover, he was diagnosed with tinnitus during a June 2019 VA audiological examination. Thus, the Board finds that the current disability element has been met. Additionally, the Board finds that the in-service element has been satisfied. The Veteran has reported experiencing tank nose and missile fire; his personnel records reflect that his military occupational specialty (MOS) was missile tank turret mechanic; and the VA audiologist conceded that he had a high probability of harmful noise exposure in service. See 38 U.S.C. § 1154(a). Thus, the only question on appeal is whether there is a link between his current tinnitus and in-service harmful noise exposure. After reviewing the record, the Board finds that the weight of the evidence is in equipoise as to whether the Veteran’s current tinnitus originated in service. The probative evidence in support of his claim consistent primarily of his competent lay assertions that his tinnitus began in service. Notably, in a statement accompanying his NOD, the Veteran indicated that ringing in his ears had “been with me since [being stationed at] Fort Hood.” Although there is some evidence of record that calls the Veteran’s assertions into question, including a negative opinion authored by the VA audiologist in June 2019, the positive evidence put forth by the Veteran of ringing in his ears or similar symptoms during and after active service renders the nexus element to be at least in equipoise. The Board further notes that the VA audiologist based the negative opinion on the Veteran’s statement that his tinnitus had “maybe” begun ten to 15 years ago; the report notes the Veteran’s statement that the onset of his tinnitus was “gradual.” The Veteran has subsequently clarified that in fact his tinnitus was present since his period of active service. In sum, when resolving all reasonable doubt in the Veteran’s favor, the Board finds that a nexus to service is shown and service connection will be granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). 2. Bilateral hearing loss The Veteran contends that his current bilateral hearing loss disability is related to in-service noise exposure. As discussed above, the Board has conceded harmful noise exposure in service, as such is consistent with the circumstances of the Veteran’s service, particularly in light of his MOS. See 38 U.S.C. § 1154(a). The Board further finds that a current hearing loss disability has been demonstrated. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. Hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). In this case, the Veteran underwent a VA audiological evaluation in June 2019, which revealed puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 10 65 65 LEFT 30 25 40 50 50 In addition, speech audiometry testing revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. In light of the above, the requirements of 38 C.F.R. § 3.385 have been met. The Board now turns to whether the Veteran’s current bilateral hearing loss disability can be linked to in-service harmful noise exposure. In this regard, the Board has reviewed the Veteran’s service treatment records and finds no evidence of an in-service hearing loss disability. His enlistment examination reflects normal hearing bilaterally. In April 1977, he underwent an examination prior to his discharge that also revealed normal hearing bilaterally. Likewise, the Veteran denied hearing loss or any history of ear, nose, or throat trouble in an April 1977 Report of Medical History. The Veteran filed the instant claim for service connection in March 2019. At that time, he did not provide any specific arguments or assertions in support of his claim. His VA audiological evaluation in June 2019 reflects his report that his hearing loss began “a long time ago,” with no specific assertions of in-service incurrence. With regard to post-service occupational noise exposure, the Veteran reported that he worked in an oil refinery for 20 years, during which he was exposed to noise from machinery (he stated that he was provided and wore ear protection). He denied any recreational noise exposure. The Veteran stated that he received hearing aids approximately three years prior. Again, there is no indication in this report that the Veteran described experiencing hearing loss in active service or within one year of separation from active service. The June 2019 VA audiologist’s evaluation reflects that the examiner reviewed the record and opined that it was not at least as likely as not that the Veteran’s bilateral hearing loss disability was caused by or a result of an event in service. By way of rationale, the examiner noted that there was “no significant permanent shift in hearing thresholds beyond test variability from entrance to separation,” which constituted “objective evidence of no permanent auditory damage on active duty from conceded noise.” The examiner emphasized that the Veteran’s April 1977 separation audiogram was “silent for hearing loss.” The examiner acknowledged that the Veteran was exposed to harmful noises in service but nonetheless determined that “there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology.” As there was no evidence of such, the examiner determined that the evidence was insufficient to demonstrate a link between such exposure and the Veteran’s current hearing loss. In a January 2020 statement accompanying his NOD, the Veteran described being exposed to loud noises in service but again declined to assert in-service hearing loss. At the same time, he specifically reported that his tinnitus began in service, stating: “Hearing Loss has deteriorated over the years, but the ringing in my ear has been with me since Fort Hood.” The Board finds that the preponderance of the evidence is against a finding that the Veteran’s current bilateral hearing loss disability was incurred in service or is related to in-service harmful noise exposure. The Board reiterates that the Veteran’s contentions are that his current hearing loss developed due to exposure to harmful noise, including tank noise and missile fire, in service. However, the June 2019 VA examiner’s opinion noted that there were no threshold shifts in service, that the Veteran’s hearing was normal at separation, and that there was no evidence of auditory damage in service. On review, the Board finds the VA examiner’s opinion to be the most probative evidence, as the opinion accurately characterized the service treatment records, including the relevant audiograms, as well as the Veteran’s lay contentions regarding his in-service noise exposure and the onset of his hearing loss. The Board notes that, in this case, the first objective evidence of record of a hearing loss disability was the June 2019 VA audiological evaluation, many decades after the Veteran’s discharge from service. The Veteran has provided no other objective evidence of a documented hearing loss disability prior to the VA evaluation. In short, the VA examiner’s negative nexus opinion is factually correct, and the Board can find no evidence that calls its conclusions into question. The Board acknowledges the Veteran’s reports of being exposed to harmful noise in service, as well as his general assertions that such exposure is related to his current hearing loss disability. Likewise, the Board recognizes that the absence of evidence of an in-service hearing loss disability is not fatal to the Veteran’s service connection claim. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Here, however, the Veteran is not competent to opine as to the specific cause of his current hearing loss disability, and the Board finds that the conclusions of the VA audiologist are more probative than the Veteran’s lay statements. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Veteran has never actually alleged that his hearing loss began in service. The closest he came was reporting to the VA audiologist (as reflected on the June 2019 report) that his hearing loss began “a long time ago.” This assertion is insufficient to demonstrate in-service incurrence, or indeed incurrence of a hearing loss disability within one year of discharge from service. In sum, the weight of the evidence of record is against the Veteran’s claim that in-service harmful noise exposure is causally linked to his current bilateral hearing loss disability, nor does the weight of the evidence suggest that an organic disease of the nervous system manifested by hearing loss manifested in service or within one year of separation. See 38 C.F.R. § 3.303(d); Walker, supra. Accordingly, service connection must be denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.