Citation Nr: 20009784 Decision Date: 02/05/20 Archive Date: 03/06/20 DOCKET NO. 17-12 598 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 was not incurred in-service, did not manifest within one year of separation from service, and was not caused by service. 2. The Veteran’s tinnitus did not have its onset during service, did not manifest within one year of separation from service, and was not caused by the Veteran’s service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1957 to May 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2018. In the March 2018 Board decision, the Board remanded the issues of service connection for bilateral hearing loss and tinnitus. The Board found that a remand was necessary in order to obtain a VA examination. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran underwent a VA examination for hearing loss and tinnitus in October 2019. Thus, the Board finds that the remand directives from the March 2018 Board decision were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). 1. Bilateral Hearing Loss The Veteran contends that he has a hearing loss disability caused by exposure to loud noise during service. An October 2019 VA examiner diagnosed the Veteran with bilateral hearing loss. As such, the first element of service connection has been met. Regarding the second element, service treatment records (STRs) do not indicate the Veteran complained of or was diagnosed with hearing loss during service. However, the Veteran has credibly reported exposure to loud noise during service. In a January 2019 Statement in Support of Claim, he stated that he was qualified on multiple weapons systems, including the.30 caliber machine gun as well as the M48 Tank, which has a 90MM main gun. He stated that his service records show qualifications on multiple high-noise weapon systems. Accordingly, the Board concludes that the Veteran was exposed to loud noise as described. Therefore, this case turns on whether the Veteran’s currently diagnosed hearing loss is related to his in-service noise exposure. The Veteran’s STRs show that in July 1957, on enlistment examination, the Veteran had 15/15 hearing based on whisper voice tests. On his April 1959 separation examination, he also exhibited 15/15 hearing. The Veteran’s audiometer from his separation examination shows the Veteran’s hearing to be within normal limits in both ears. A clinical evaluation of the ears was normal. Notably, a hearing loss disability was not mentioned during service. The Veteran attended a VA examination in October 2019. The examiner found that the Veteran’s hearing loss was less likely than not caused by or a result of his military service. The examiner stated that the Veteran had normal hearing on the separation test with thresholds too low for any permanent significant shift in hearing thresholds to have occurred from entrance. He stated that this is evidence of no permanent auditory damage on active duty. No report of decreased hearing is found in his claims file or at separation. The examiner reasoned that although noise exposure is conceded and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone. Therefore, a nexus is not established, and hearing loss is less likely than not a result of military noise exposure. The Board finds the October 2019 examiner’s opinion to be the most probative evidence of record as to whether the Veteran’s hearing loss is related to his active service. The examiner’s rationale is logical, and she took into consideration the entire record, including the Veteran’s service and post-service treatment records, as well as the Veteran’s historical accounts regarding his military history and in-service noise exposure. The Board has considered the Veteran’s contention that his hearing loss is the result of loud noise exposure during active service. However, the Veteran, as a layperson, is not competent to give a medical opinion on the etiology of his hearing loss, which occurred many years after his miliary noise exposure. This is a complex medical question and is not within the knowledge of a lay person or determinable by observation with one’s senses. As such, the Veteran’s statement is not competent or probative evidence. There is no probative evidence of record finding that the Veteran’s hearing loss was caused by his in-service noise exposure. Further, there was also no evidence that the Veteran’s hearing loss manifested within one year of active duty service. See 38 C.F.R. § 3.307 (a)(3). Therefore, the preponderance of the evidence is against granting entitlement to service connection for bilateral hearing loss. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Tinnitus The Veteran contends that his tinnitus was caused by in-service noise exposure. An October 2019 VA examination indicates the Veteran has a diagnosis of tinnitus. Therefore, the first element of service connection has been met. Regarding the second element, service treatment records (STRs) do not indicate that the Veteran complained of or was found to have tinnitus during service. However, the Veteran has credibly reported exposure to loud noise during service as discussed above. The Veteran’s STRs show that in April 1959, his separation examination noted normal ears. The Veteran attended a VA examination in October 2019. He reported constant ringing tinnitus. He stated that he did not remember when it started but reported that he has had it a long time. He added that it does not affect his sleep. The VA examiner concluded that it is less likely than not the Veteran’s tinnitus was caused by or is a result of military noise exposure. He reasoned that although the Veteran did not have an entrance exam (only a whisper test which is not a reliable indicator of hearing loss), he did have normal hearing thresholds on his separation exam that were far too low for any permanent significant threshold shift to have occurred. There is no complaint of tinnitus on his separation exam. Therefore, it is less likely than not that his hearing loss and tinnitus are a result of military noise exposure. Based on the evidence above, the Board finds that the Veteran’s tinnitus did not begin in-service or within one year of separation from service. The Veteran has never specifically stated this his tinnitus began in-service, within a year of separation from service, or that he has had continuous symptoms since service. As such, this claim cannot be granted based on onset in-service or continuous symptoms since service, or on a presumptive chronic basis. Therefore, this case turns on whether the Veteran’s currently diagnosed tinnitus is related to his in-service noise exposure. The Board finds the October 2019 VA examiner’s opinion to be the most probative evidence of record regarding whether the Veteran’s tinnitus was caused by his noise exposure in service. The examiner’s rationale is logical, and she took into consideration the entire record, including the Veteran’s service and post-service treatment records, as well as the Veteran’s historical accounts regarding his military history and in-service noise exposure. The Board has considered the Veteran’s contention that his tinnitus is the result of loud noise exposure during active service. However, the Veteran, as a layperson, is not competent to give a medical opinion on the etiology of his tinnitus, which occurred many years after his miliary noise exposure. This is a complex medical question and is not within the knowledge of a lay person or determinable by observation with one’s senses. As such, the Veteran’s statement is not competent or probative evidence. There is no probative evidence of record finding that the Veteran’s tinnitus was caused by his in-service noise exposure. Therefore, the preponderance of the evidence is against granting entitlement to service connection for tinnitus. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, Associate 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.