Citation Nr: 20028841 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-50 695 DATE: April 24, 2020 ORDER Entitlement for service connection for bilateral hearing loss is denied. Entitlement for service connection for tinnitus loss is denied. FINDINGS OF FACT 1. Bilateral hearing loss for VA purposes was not present during service, is not attributable to service, and did not manifest to a compensable degree within one year of discharge from active service in October 1979. 2. The Veteran’s tinnitus was not present during service, is not attributable to service, and did not manifest to a compensable degree within one year of discharge from active service in October 1979. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.303 (a), 3.307, 3.309 (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303 (a), 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty from October 1976 to October 1979. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board granted new and material evidence for bilateral hearing loss and tinnitus. In July 2019, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a “chronic condition” under 38 C.F.R. § 3.309 (a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are recognized by VA as a “chronic condition” under 38 C.F.R. § 3.309 (a); therefore, 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). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). A veteran will be found to have hearing loss for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. Hensley, 5 Vet. App. at 159. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement for service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss. The current claim was received in July 2018. The competent evidence of record documents the presence of current hearing loss. The September 2019 VA examination results revealed that the auditory threshold in at least two of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is greater than 40 decibels. The Veteran’s DD-214 indicates that his Military Occupational Specialty (MOS) was telecommunication specialty; based on this the Board finds the Veteran was exposed to acoustic trauma during active service. Therefore, the two Shedden criteria are met and not in dispute. The remaining issue for adjudication is whether there is a causal connection between the current hearing loss and the exposure to in-service acoustic trauma. The Board finds a preponderance of the evidence to be against such a causal connection. The service treatment records (STRs) are entirely negative for complaints of, diagnosis of or treatment for hearing problems. The enlistment examination is silent as to any hearing loss problems and clinical examination of the ears was normal. The Veteran had in-service audiological evaluations in July 1976 and October 1979 at which time auditory thresholds were recorded. The enlistment examination shows puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 15 15 10 LEFT 20 20 20 15 The separation examination shows puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 5 5 5 LEFT 5 5 5 5 Medical evaluation before discharge from service did not reveal the presence of any chronic hearing disability. Clinical examination of the ears was normal, and the Veteran did not report any hearing related problems. The Board finds no evidence of hearing loss during active duty. The audiometric testing conducted during active duty documented normal hearing. See Hensley v. Brown, 5 Vet. App. 155 (1993) (the threshold for normal hearing is from 0 to 20 decibels). There is also no evidence of hearing loss for VA purposes in the contemporaneous medical evidence from active duty and shortly thereafter. The record contains no medical evidence dated between October 1979 and October 1980 - within the first year of discharge from service - indicating hearing problems or that audiological testing was conducted. The first clinical evidence of hearing loss is dated many years after the Veteran’s discharge. There is no competent evidence of the presence of hearing loss to a compensable degree within one year of discharge. Service connection for hearing loss on a presumptive basis is not warranted. The post-service treatment records document reports of hearing loss and diagnosis of hearing loss in May 2016. See September 2018 medical records. The Veteran underwent a VA audiology examination in January 2015. The examiner diagnosed the Veteran with left ear sensorineural hearing loss. The Veteran’s right ear was within normal limits. Testing revealed left ear hearing loss for VA purposes. The examiner gave a negative etiology opinion as to whether the hearing loss is related to military service. The rationale provided was that hearing was within normal limits for both ears at discharge. The examiner noted that it was well established in the medical literature that exposure to high levels of noise causes either immediate hearing loss in the case of acoustic trauma or progressive hearing deficits during prolonged periods of exposure during military service. Retroactive effects in hearing are not expected 35 years after exposure to military noise. The Veteran attended another VA audiology examination in September 2019. The examiner diagnosed bilateral sensorineural hearing loss. Testing revealed hearing loss for VA purposes. The examiner gave a negative etiology opinion as to whether the hearing loss is related to military service. In support of this opinion, the examiner stated that the Veteran had normal hearing levels for the separation audio exam and after reviewing the file the Veteran did not have a hearing injury while in service. Furthermore, the examiner stated that medical literature does not support that a delayed onset or retroactive effect is expected to be evidenced as a hearing loss so many years after being exposed to military noise. The Board finds the January 2015 and September 2019 opinions persuasive. The examiners are audiologists who noted the Veteran’s self-reported medical history and exposure to noise during service, indicated a review of the claims file, interviewed the Veteran, and examined the Veteran. Further, the opinion is based on the evidence summarized earlier, which indicates no hearing problems for decades years following service. As such, the Board finds the opinions of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Further, the January 2015 and September 2019 opinions are the only medical opinion of record that addresses the issue of medical nexus. There is no evidence of continuity of symptomology of hearing loss from discharge to the present. The Veteran’s own self-reported medical history attributes hearing loss to beginning many years after discharge. The evidence demonstrates that, for approximately 40 years following service, the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity. See 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker, supra. The Veteran has not submitted a positive medical opinion in support of the claim. In assessing the claim, the Board has considered the Veteran’s lay opinion that he currently experiences hearing loss as a result of military service. The Veteran contends that because he was exposed to acoustic trauma while in service, he has a claim for service connection. However, acoustic trauma in service alone cannot grant a claim. There must be a nexus opinion that links his current hearing loss disability to his acoustic trauma he experienced in service. Furthermore, while he is competent to report observable symptoms such as diminished hearing capacity, he is not competent to link current hearing loss to military noise exposure. As a layperson, the Veteran is not competent to make a complex medical determination as to the etiology of hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This requires specialized training and testing. The Veteran’s opinion that his current hearing loss is due to military service is without probative value. His own report is hearing loss began after discharge and he is not competent to provide an opinion regarding the etiology of the hearing loss. As the preponderance of the evidence is against the claim of entitlement to service connection for hearing loss, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement for service connection for tinnitus loss The Veteran seeks service connection for tinnitus. The current claim was received in July 2018. The Board finds that the Veteran currently has tinnitus. The September 2019 VA examination report include a current diagnosis of recurrent tinnitus. In addition, the Board finds that the Veteran experienced noise exposure in-service based on the Veteran’s aforementioned DD-214 MOS. As such, the first two Shedden elements are met and are not in dispute. The issue, therefore, is whether there is a causal connection between the Veteran’s tinnitus and his in-service noise exposure. The Board finds the preponderance of the probative evidence of record to be against the Veteran. As such, his claim of entitlement to service connection for tinnitus is denied. The Veteran’s STRs are silent as to complaints or treatment for tinnitus during service. As stated above, the Veteran’s in-service audiometric testing did not reveal any significant threshold shift from enlistment to separation. There is no evidence of tinnitus in the contemporaneous medical evidence from active duty and shortly thereafter. The record contains no medical evidence dated between October 1976 and October 1979 - within the first year of discharge from service indicating any complaints of tinnitus. The first complaint of tinnitus is dated years after the Veteran’s discharge. There is no competent evidence of the presence of tinnitus to a compensable degree within one year of discharge. Service connection for tinnitus on a presumptive basis is not warranted. A review of the Veteran’s post service VA treatment records demonstrate that the first complaints of tinnitus was found in an August 2018 VA treatment record. The clinician noted the Veteran’s complaints of tinnitus. The Veteran reported constant bilateral tinnitus with an onset in May 2016. The Veteran attended a VA examination in January 2015. The Veteran denied having tinnitus. Because the Veteran denied having tinnitus, the examiner gave a negative etiology opinion for tinnitus as the Veteran did not report a current diagnosis of tinnitus. The Veteran attended another VA examination in September 2019. The examiner diagnosed the Veteran as having recurrent tinnitus with an onset of a few years ago. The examiner gave a negative etiology opinion as to whether the hearing loss is related to military service. In support of this opinion, the examiner stated because the Veteran denied having tinnitus for so many years, the onset of tinnitus after his active service is not related to his acoustic trauma in service as well as the lack of complaints of tinnitus in both during and immediately after service. The Board finds the January 2015 and September 2019 opinions persuasive. The examiners are audiologists who noted the Veteran’s self-reported medical history and exposure to noise during service, indicated a review of the claims file, interviewed the Veteran, and examined the Veteran. Further, the opinion is based on the evidence summarized earlier, which indicates no tinnitus problems for approximately 40 years following service. As such, the Board finds the opinion of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Further, the January 2015 and September 2019 opinions are the only medical opinion of record that addresses the issue of medical nexus. There is no evidence of continuity of symptomology of tinnitus from discharge to the present. The Veteran’s own self-reported medical history attributes tinnitus to beginning years after discharge. The evidence demonstrates that, for approximately 44 years following service, the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity. See 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker, supra. In assessing the claim, the Board has considered the Veteran’s lay opinion that he currently experiences tinnitus as a result of military service. Lay evidence can be competent and sufficient to establish etiology if the layperson is competent to identify the medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). However, the Veteran own self-reported history places the beginning of tinnitus to years after his discharge. (Continued on the next page) The Board finds that based on the evidence of record, the Veteran’s tinnitus is not the result of his military service. As the preponderance of the evidence is against the claim of entitlement to service connection for tinnitus, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.