Citation Nr: 20009750 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 16-63 699 DATE: February 5, 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 Veteran’s bilateral hearing loss did not manifest during service or within one year of separation and is not otherwise related to service. 2. The Veteran’s tinnitus did not manifest during service or within one year of separation and is not otherwise related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in active service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. Tinnitus was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1947 to December 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision. In his December 2016 substantive appeal, the Veteran requested a hearing before the Board. However, he subsequently withdrew that request in July 2019 correspondence. Therefore, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704(e). In August 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. The case has since been returned to the Board for appellate review. Law and Analysis In August 2019, the Board remanded the case to schedule the Veteran for a VA examination in connection with his claims. VA records indicate that he later failed to report for a VA examination in December 2019, which was noted in a December 2019 supplemental statement of the case (SSOC). The Veteran and his representative have not disputed that finding, and they have not provided good cause or requested that the examination be rescheduled. The Board also notes that there has been no correspondence returned as undeliverable. The Court has held that “[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). As the Veteran failed to report for the examination without good cause, the Board must decide his service connection claims based on the evidence of record. See 38 C.F.R. § 3.655(b). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist with regard to claims decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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 organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system where there is evidence of acoustic trauma). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system (sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 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. The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss 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). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss and tinnitus. The Veteran currently has hearing loss at a level that is considered disabling for VA purposes, and he has reported the presence of and has been diagnosed with tinnitus. He is also competent to report noise exposure during his military service, which is consistent with the circumstances of his service. Therefore, the evidence satisfies two of the three elements needed for service connection for each disability. Thus, the remaining question is whether the Veteran’s currently diagnosed bilateral hearing loss and tinnitus manifested in service or within one year thereafter or are otherwise related to his military service, including noise exposure therein. The Board will confine this analysis to a discussion of that evidence. The Board notes that sensorineural hearing loss and tinnitus, nor manifestations sufficient to identify either disease entity, are not shown during the Veteran’s military service. Rather, the only hearing test of record was completed before the Veteran retired in June 1967. The retirement audiogram was essentially normal, as the audiogram results showed normal hearing in both ears except for a mild loss at 6000 Hertz in both ears. Thus, he did not have hearing loss as defined in 38 C.F.R. § 3.385. The pertinent regulations require that manifestations are “noted” in the service records and that is not case in this instance. Therefore, while currently-diagnosed sensorineural hearing loss and tinnitus are chronic diseases under 38 C.F.R. § 3.309(a), no notations of the disease or any characteristic manifestations of sensorineural hearing loss or tinnitus were shown in the service records. There is also no medical evidence showing that he had hearing loss or tinnitus within one year of his military service. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and sensorineural hearing loss and tinnitus may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, the Veteran has not reported that he has had tinnitus since service. In fact, during the October 2015 VA examination, he indicated that he did not know the date of onset for his tinnitus. The Board does acknowledge the Veteran’s statements that his hearing loss began in service. See October 2015 VA examination report (audiological case history). The Veteran is competent to report his experience and symptoms in service and thereafter. While lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has had difficulty hearing since his military service. However, his allegations are inconsistent with the contemporaneous record. As previously discussed, there is no evidence of any complaints, treatment, or diagnosis in service. Moreover, upon objective testing during a June 1967 retirement examination, his hearing was documented as being normal except for a mild hearing loss at 6000 Hertz in both ears. As such, there is actually affirmative evidence showing that he did not have hearing loss at the time he retired from military service (as opposed to merely an absence of evidence). The Board finds that this affirmative evidence, including objective testing, outweighs the Veteran’s more recent assertions of an onset since service, which were made in connection with a claim for compensation. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). For these reasons, the Board concludes that the Veteran’s hearing loss and tinnitus did not manifest in service or for many years thereafter. Nevertheless, the Board notes that the absence of in-service evidence of a hearing disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss 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). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran was afforded a VA examination in October 2015 in connection with his claims. The VA examiner noted that the Veteran’s June 1967 retirement examination audiogram was the only pure tone hearing test available for review and that the audiogram showed normal hearing in both ears except for a mild hearing loss at 6000 Hertz in both ears. The VA examiner stated that there was no evidence of the Veteran’s current significant hearing loss during service. The VA examiner noted that the Veteran was 83 years-old and commented that hearing loss was common for his age. Therefore, he opined that the Veteran’s bilateral hearing loss was less likely than not caused by or the result of noise exposure during service. The examiner also opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with his hearing loss and that it was less likely than not caused by or a result of military noise exposure. The Board remanded the case in August 2019 to schedule the Veteran for an additional VA examination. However, as noted above, the Veteran failed to report for the VA examination. He has not disputed that fact. Nor has he requested that the examination be rescheduled or provided good cause. Therefore, the Board must decide the claims based on the evidence of record. See 38 C.F.R. § 3.655(b). Notably, there is no medical opinion otherwise relating the Veteran’s hearing loss and tinnitus to his military service. The Board does acknowledge that laypersons are sometimes competent to provide opinions regarding such medical matters as diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the October 2015 VA medical opinion outweighs the general assertions of the Veteran. In this regard, the Board notes that the VA examiner has training, knowledge, and expertise. He reviewed the evidence of record, including the Veteran’s own lay statements, and relied on his expertise in rendering his opinion supported by rationale. Therefore, the Board finds that the VA opinions are more probative than the Veteran’s lay statements. Based on the foregoing, the Board finds that the Veteran’s bilateral hearing loss and tinnitus are not causally or etiologically related to his military service, to include the noise exposure therein. Accordingly, the claims for service connection for bilateral hearing loss and tinnitus must be denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.