Citation Nr: 20031002 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 17-22 211 DATE: May 4, 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 originate in service or until many years thereafter and is not otherwise etiologically related to service. 2. The Veteran’s tinnitus did not originate in service or until many years thereafter, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1956 to June 1958. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision and a January 2016 notification letter from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a Board hearing in April 2019. The transcript has been associated with the record. Service Connection 1. Entitlement to service connection for bilateral hearing loss and tinnitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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); See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including cancer, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). 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). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The record in this case is clear as to whether the Veteran has a current disability for VA purposes. The December 2015 VA examination diagnosed the Veteran with tinnitus, and audiometric testing disclosed the presence of bilateral hearing loss for VA purposes. Consequently, the current disability requirement is satisfied. The Board also observes that the Veteran has reported that he was exposed to acoustic trauma in service as a result of his military occupational specialty (MOS). In a July 2015 statement and in the April 2019 Board hearing, the Veteran explained that he was exposed to constant noise from working in the engine and pump room. He further explained that he was not provided any hearing protection and worked in these rooms for eight to sixteen hours per day. He noticed that after these shifts, he would have ringing in his ears. He further explained that after service he noticed that he had hearing problems and that he had constant ringing in his ears. He also explained that post-service, he wore ear protection at his jobs. The central issue to resolve is whether the Veteran’s bilateral hearing loss and tinnitus incurred in, was caused by, or otherwise etiologically related to service. Based upon a review of the record, the Board finds that service connection for bilateral hearing loss and tinnitus is not warranted in this case because the evidence does not show a causal relationship, i.e. a nexus, between the claimed in-service disease or injury and the current disability. In making this finding, the Board notes the Veteran’s service treatment records (STRs) are negative for any complaints, treatment for, or diagnosis of hearing loss or tinnitus during service. His audiological examinations were normal during service. The Board notes that the Veteran submitted lay statements reporting that his hearing loss and tinnitus were caused by his time in service, specifically due to his MOS. In the December 2015 VA examination, the examiner opined that it was less likely that the Veteran’s bilateral hearing loss was caused by his time in service since there was no record of hearing loss during or soon after service. The examiner explained that informal hearing evaluations during the Veteran’s military service indicate normal hearing. The examiner also explained that the Veteran reported civilian occupation as an excavator for approximately forty-five years and as a factory worker for eight years. Thus, the Veteran’s hearing loss is more likely due to civilian occupational noise exposure. The examiner further opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with the hearing loss since tinnitus is known to be a symptom associated with hearing loss. There are no post-service treatment records concerning the Veteran’s hearing loss and tinnitus, nor was there any indication that the Veteran had any outstanding treatment records that were not associated with the record. The Veteran’s daughter submitted a statement explaining that ever since she can remember, the Veteran has had hearing problems. She remembers that her mother scheduled an appointment with a doctor to treat the Veteran’s hearing loss. She also remembers that as a child, her friends were often intimidated by the Veteran because he spoke loudly due to his hearing loss. The Board notes that the Veteran is clearly competent to report observable symptomatology, i.e. hearing impairment and tinnitus. In that regard, the Board notes that the lay statements regarding onset and continuity of symptomatology are not supported by the evidence of record, and otherwise lack credibility. The Veteran’s STRs contain no complaints, symptoms, treatment, or diagnosis of bilateral hearing loss or tinnitus. There are no post-service medical treatment records that show treatment of hearing loss or tinnitus right after service or in the decades since then. The absence of post-service findings, diagnoses, or treatment for hearing loss and tinnitus decades after service is one factor that tends to weigh against a finding of continuous symptoms after separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Additionally, the Board accords significant probative weight on the December 2015 VA examination. The record reflects the examiner reviewed the Veteran’s pertinent medical history, documented his current complaints, and rendered findings and diagnoses consistent with the remainder of the evidence of record, and therefore, the examination is adequate for adjudication purposes. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). (Continued on the next page)   The Board also notes that there is no evidence that the Veteran’s disability manifested to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. §§ 3.307, 3.309(a). Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for bilateral hearing loss and tinnitus, and thus, the benefit-of-the-doubt doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.