Citation Nr: 20052924 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 17-58 043 DATE: August 10, 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 weight of the evidence is against a finding that the Veteran’s bilateral hearing loss began during service, within one year of separation from service, or was otherwise caused by his active service. 2. The weight of the evidence is against a finding that the Veteran’s tinnitus began during service, within one year of separation from service, or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 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 February 1958 to July 1962. Issues 1-2: Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Bilateral sensorineural hearing loss (organic disease of the nervous system) is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran’s claim for service connection for hearing loss. In this case, where there is evidence of acoustic trauma and sensorineural hearing loss, tinnitus is also considered a “chronic disease” under 38 C.F.R. § 3.309(a) for presumptive service connection purposes. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran contends that he has bilateral hearing loss and tinnitus due to being an artillery crewman during service. See, e.g., September 2016 notice of disagreement. The Board has no reason to doubt the credibility of the Veteran’s assertions of in-service acoustic trauma. Notably, his DD 214 Form shows the Veteran’s military occupational specialty was Field Artillery Crewman. However, military noise exposure alone is not considered to be a disability, rather, when sensorineural hearing loss is first documented more than a year after service separation, it must be shown that the hearing loss was caused by the military noise exposure. In the instant case the evidence shows that the Veteran met the regulatory criteria for bilateral hearing loss many years after service. See April 2016 VA examination whereby the Veteran met the criteria for bilateral hearing loss pursuant to 38 C.F.R. § 3.385 and had a diagnosis of bilateral sensorineural hearing loss. The remaining question is whether bilateral hearing loss is related to the Veteran’s service. Service treatment records show that on the February 1958 entrance examination whispered voice testing was 15/15 in both ears. On separation examination in June 1962, the puretone thresholds, in decibels at 500, 1000, 2000, 3000, and 4000 Hertz in the right ear were: 0 (15), 5 (15), 0 (10), and 0 (5); and in the left ear were 0 (15), 5 (15), 5 (15), and 10 (15). Pure tone thresholds at 3000 Hertz were not recorded on the examination report. The Board notes that prior to October 31, 1967, service audiometric test results were likely listed in ASA units rather than the ISO (ANSI) units of today. Thus, the above audiogram does not show that when converted to ISO units, the Veteran had bilateral hearing loss per VA criteria. The Veteran was afforded a VA audiological examination in April 2016, however as the Board in the November 2019 remand determined that the examiner’s rationale for the unfavorable opinion was inadequate, the examination need not be further addressed. On VA examination in January 2020, the examiner noted that the Veteran’s military occupational specialty was in artillery. His entrance examination into service only showed whispered voice testing. Upon separation from service, the examiner commented that the Veteran’s hearing was good with thresholds ranging from 10 to 15 decibels. The examiner found that there was no mention of hearing loss, tinnitus, or acoustic trauma in the service records. The examiner noted that there was no audiogram in the claims file until 2016. Objective findings show that the Veteran met the criteria for bilateral hearing loss as he had 50 decibels at 1000 Hertz in the right ear and 45 decibels at 1000 Hertz in the left ear. The diagnosis was bilateral sensorineural hearing loss. The examiner opined that the Veteran’s right ear and left ear hearing loss and tinnitus were not at least as likely as not caused by or a result of service. The examiner noted that upon entrance into service the Veteran passed the whisper voice test and upon separation from service the Veteran’s hearing was very good with thresholds ranging from 10 to 15 decibels, which were thresholds after conversion to ANSI. There were no additional audiograms until 2016. The examiner pointed out that the Veteran stated that he was not sure when his tinnitus started but thought it was after he left service. The examiner explained that the Veteran after service worked around noise for a short time and then worked in an office. He also was a hunter and rode motorcycles. The examiner found it significant that the Veteran started experiencing severe vertigo recently which could indicate some underlying condition such as Meniere’s Disease that is known to be associated with vertigo, hearing loss, and tinnitus. The examiner further explained that in an article published by NCBI, May, 2003: 24(3): 287-91, titled “Is there a relation between acoustic trauma or noise-induced hearing loss and a subsequent appearance of Meniere’s Disease? The conclusion was that there was no support for the hypothesis that Meniere’s Disease may be causally related to previous acoustic trauma or noise-induced hearing loss. The examiner concluded that if the Veteran currently suffered from Meniere’s Disease it would more likely than not, not be related to his military noise exposure. The examiner found it significant that even though the Veteran was exposed to high levels of noise during his military service, his hearing was well within normal limits when he left service, he did not experience tinnitus until after he left service and, there were no audiograms between 1968 and 2016 to document changes in his hearing. The examiner opined that the Veteran’s tinnitus is at least as likely as not a symptom associated with hearing loss as tinnitus is known to be a symptom associated with hearing loss. The examiner noted that the Veteran began to experience tinnitus in his right ear only during a time when he worked at General Motors for a short time, hunted and rode motorcycles. The Board finds this opinion to be probative as it was based on medical principles and applied to the facts of the case. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the nature of the Veteran’s bilateral hearing loss and tinnitus in proffering the opinion. The opinion is uncontroverted by the other competent evidence of record. During the October 2019 Board hearing the Veteran testified that during service he was in artillery. He noted he was a gunner and did not use earplugs. He stated that after service he worked for General Motors approximately for six months on the assembly line. The Veteran noted that after service he noticed he had air in his ear. The Board acknowledges that the Veteran is competent to report symptoms such as decreased hearing acuity, but there is no indication that he is competent to diagnose sensorineural hearing loss or to etiologically link such a diagnosis to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of the sensorineural bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. As the lay evidence is not competent, the matter of whether it is credible is not reached. While the Veteran is competent through lay testimony to establish that he has tinnitus, the evidence discussed above shows that he is not contending that he has had tinnitus since service. Thus, in the instant case it also follows that tinnitus may not be considered a chronic disease under 38 C.F.R. § 3.309(a) for presumptive service connection purposes. See Fountain, supra. Sensorineural hearing loss is included among the chronic diseases under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent that the Veteran may be asserting continuity of symptomatology pertaining to his bilateral hearing loss, his assertions are outweighed by the evidence of record discussed above.   Accordingly, because the preponderance of the evidence is against the claims of service connection for bilateral hearing loss and tinnitus, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.