Citation Nr: 20021734 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-18 559 DATE: March 26, 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 disability did not manifest to a compensable degree within the applicable presumptive period of one year after honorable service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The probative evidence of record does not demonstrate that the Veteran’s tinnitus is etiologically related to service, to include based on continuity of symptomatology. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to January 1990, along with additional Reserve service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters have previously been before the Board and were remanded in September 2018. As part of these remands, the Agency of Original Jurisdiction (AOJ) was directed to further develop the claims at issue in this appeal. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Specific to claims for service connection, hearing loss is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Tinnitus has been defined as “a noise in the ears, such as ringing, buzzing, roaring, or clicking.” See Dorland’s Illustrated Medical Dictionary 1714 (32d ed. 2012). In Charles v. Principi, 16 Vet. App. 370, 374-75 (2002), the Court held tinnitus is a condition which is capable of lay observation. The Veteran asserts that he has a bilateral hearing loss disability, as well as recurrent tinnitus, as a result of in-service noise exposure. See October 2019 Appellant’s Brief. 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran attended a VA examination in July 2019 and his hearing test results showed that he had bilateral hearing loss for VA purposes. As a result, the first element of service connection, a current disability for VA purposes, has been met in this case. See Shedden, 381 F.3d at 1167. The second element of service connection is an in-service incurrence, which has also been met in this case. The Veteran’s DD-214 and other military personnel records confirm that he served as a Morse systems specialist, akin to a role in a ground radio communications field. This Military Occupational Specialty (MOS) has been assigned a “moderate” probability of in-service noise exposure in VA’s Duty MOS Noise Exposure Listing. As a result, the Board finds his assertion that he had noise exposure and/or acoustic trauma during service credible and the in-service element is established. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The final, and in this case determinative, element of service connection is whether a nexus exists, linking the Veteran’s current bilateral hearing loss to his in-service noise exposure. The Board finds the preponderance of the evidence weighs against finding that a nexus exists between the Veteran’s bilateral hearing loss and his military service. The Veteran’s October 1985 enlistment examination showed the following audiometric results: pure tone thresholds for the right ear were 0, 10, 5, and 10 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively; pure tone thresholds for the left ear were 5, 5, 10, and 15 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This shows that upon entrance to service, the Veteran’s hearing was within normal limits and did not reflect hearing loss for VA purposes at this time. The Veteran’s May 1990 examination shortly after separation showed the following audiometric results: pure tone thresholds for the right ear were 10, 10, 30, and 15 decibels at 1000, 2000, 3000, and 4000 Hertz respectively; pure tone thresholds for the left ear were 10, 5, 15, and 20 decibels at 1000, 2000, 3000, and 4000 Hertz. This reflects hearing within normal limits. Additionally, the Veteran denied hearing loss and any ear, nose, or throat trouble during this examination. See May 19, 1990 examination, report of medical history. This indicates that upon discharge from active duty service, the Veteran had hearing within normal limits bilaterally. The Veteran was then afforded a VA audiological examination in August 2013 in connection with this present claim. The Veteran’s pure tone thresholds for his right ear were 10, 15, 20, and 30 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages out to 19 decibels for the right ear. The Veteran’s pure tone thresholds for his left ear were 20, 20, 20, and 25 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. This averages out to 21 decibels for the left ear. Speech discrimination scores, using the Maryland CNC word list, were 96 percent for both the Veteran’s right and left ears. These objective findings do not meet the criteria for a disability for VA purposes. See 38 C.F.R. § 3.385. The Veteran also submitted treatment records from a private audiologist reflecting treatment from December 2012 to August 2015. The private treatment records reflect that the Veteran has had occupational noise exposure since leaving service but noted that the Veteran endorsed always wearing hearing protection when necessary. See December 2012 private audiologic consultation report. The private treatment records do not contain the pure tone threshold findings for each ear, but the consultation report summarizes and indicates that “pure tone audiometry reveals presence of normal hearing in right ear and slight high frequency hearing loss in left ear.” See id. An August 2015 private audiometric evaluation provides a positive nexus opinion, where the private examiner opined that based on the audiometric findings, “his history, and credible presentation, it is as likely as not that the Veteran’s hearing loss result from military service.” As mentioned above, the Veteran was most recently afforded a VA audiological examination in July 2019 where a current disability of bilateral hearing loss for VA purposes was found. With regard to nexus, the VA examiner opined that the Veteran’s current bilateral hearing loss was less likely than not caused by or a result of an event in military service. Moreover, the VA examiner explained that there was in fact a permanent, positive threshold shift evidenced in both ears, the Veteran’s audiograms upon entrance and throughout active service show no significant changes in thresholds in either ear. The VA examiner indicated that there was mild hearing loss shown on the enlistment examination in October 1985, and upon separation from service in May 1990, there were no significant changes in the thresholds. Additionally, the VA examiner indicates that there were no documented complaints of hearing loss during service, and that the Veteran did not present with hearing loss until long after discharge. In this regard, the VA examiner noted, and the record reflects that the Veteran continued to work as an electrician after service, and therefore, also has a history of post-service, occupational noise exposure. See August 2013 VA audiological examination. The probative value of a medical opinion is based on the medical expert’s knowledge and skill in analyzing the data and the examiner’s medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication on the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the August 2015 private examiner’s opinion to be entitled to little probative weight on the issue of nexus. The private examiner does not provide the objective pure tone threshold findings, and does not elaborate on his rationale; rather, provides a conclusory statement that because the Veteran has hearing loss currently and had noise exposure while in service, they are related. In contrast, the Board gives the July 2019 VA examiner’s opinion great probative weight as the opinion was predicated on a detailed review of pertinent records, including the Veteran’s in-service medical records, his statements, and post-service medical treatment records, and provides support for his conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the VA examiner provided a clear rationale as to why the Veteran’s bilateral hearing loss was less likely than not related to service. The VA examiner acknowledged that the Veteran does have a hearing loss disability, and did have noise exposure during service; however, the VA examiner clearly explains that there is no objective medical evidence of significant threshold shifts in service which would indicate that the Veteran’s current disability and military service are related. The Board has also considered the Veteran’s lay opinion that his in-service noise exposure was related to his current bilateral hearing loss disability. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witnesses observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this case, the Board considers the potential relationship between the Veteran’s hearing loss for VA purposes and its connection to service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, conclude that there is a connection between the two. Specifically, the question of causation of hearing loss disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In this regard, such an opinion requires specialized knowledge. The Veteran is not shown to have the necessary training and expertise to provide a competent opinion as to the causes of his bilateral hearing loss disability. Therefore, the Board finds that the Veteran’s assertion that his in-service exposure to noise and his current bilateral hearing loss disability is related has less probative value. Additionally, certain chronic diseases, including organic disease of the nervous system such as sensorineural hearing loss, will be presumed to be related to service if it was noted as chronic in service; or if it manifested to a compensable degree within a presumptive period (usually one year) following separation from active duty; or if continuity of the same symptomatology has existed since service, with no intervening cause. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). In this case, the first documented complaints of hearing loss do not appear in the record until 2012. Furthermore, during the Veteran’s August 2013 VA examination, the Veteran reported that he began noticing hearing loss “10-15 years ago.” However, the record reflects that the Veteran denied hearing difficulty numerous times during this period, documented within the record. See e.g., May 1990 in-service periodic examination, March 1995 in-service periodic examination, March 2000 Reserve service periodic examination, and February 2007 annual physical. The Veteran was first diagnosed with hearing loss for VA purposes in July 2019, over 25 years after separation from service. Therefore, based on the evidence of record, there is no continuity of symptomatology since service or a diagnosis within one year of discharge from active duty service to presume a relationship between the bilateral hearing loss disability and in-service noise exposure. The Board finds that service connection is not warranted for a bilateral hearing loss disability. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For these reasons, the claim for entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus is denied. Tinnitus is a condition in which a layperson is competent to both diagnose and provide a nexus. See 38 C.F.R. § 3.159(a)(2). The Veteran's competent reports are sufficient to establish a current disability of tinnitus. However, the Board concludes that the preponderance of the evidence is against finding that his tinnitus began during active service or is otherwise related to an in-service injury, event, or disease. The December 2012 private treatment record indicates that the Veteran reported that he has had tinnitus for about 15 years. The December 2012 private examiner opined that given the history of noise exposure in the military, the Veteran’s complaint of tinnitus is at least as likely as not the result of his military service. See December 20, 2012 private audiologic consultation report. The August 2013 VA examination also addressed the Veteran’s claimed tinnitus. The VA examiner indicated that the Veteran had complaints of tinnitus bilaterally, but noted it was more noticeable in the right ear and “present most of the time”. During the August 2013 VA examination, the Veteran could not specify a cause or onset of the tinnitus but reported that he has noticed it for about 10-15 years, initially only in quiet environments, with it now becoming more constant. The August 2013 VA examiner opined that it was less likely than not caused by or a result of the Veteran’s military noise exposure as there were no documented complaints in the record for tinnitus, and the Veteran had continually denied experiencing any ear trouble, including tinnitus, until as recently as 2000. During the July 2019 VA examination, the VA examiner indicated that the Veteran reports recurrent tinnitus, noting that the Veteran endorsed that the tinnitus has been present since service with no specific date or circumstances of onset. The VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure, reasoning that there have been no documented complaints of tinnitus in the Veteran’s claims file, and that because the Veteran had normal hearing bilaterally upon discharge from active service, there would be no basis on which to conclude that his current tinnitus was caused by his military service. The Board finds the July 2019 VA opinion to be highly probative on the issue of whether the Veteran’s current tinnitus is related to his service. It was offered after examining the Veteran, reviewing his lay statements, and reviewing pertinent service records. The VA examiner included the underlying reasons for the opinion, which are not contradicted by the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the late onset, it also precludes service connection as a chronic disability by presumption. Tinnitus complaints are not shown in the record until at least 2012, many years after discharge from service. The record does demonstrate that the Veteran did not report any symptoms of tinnitus during any of his in-service medical examinations and treatments. However, what is probative here is that when he ultimately did report tinnitus, he noted that he could not specify a cause or onset time. The Board finds the statements made in connection with treatment to be more credible and therefore more probative on the issue at hand. In view of the above, the weight of the evidence is against the claim for entitlement to service connection for tinnitus. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. Indeed, the preponderance of the evidence is against finding that the Veteran’s current tinnitus began during service or is otherwise related to service. As such, the claim for entitlement to service connection for tinnitus is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maietta, 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.