Citation Nr: 21001681 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 19-37 839 DATE: January 11, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss had its onset in service or within the one-year presumptive period following service, or is etiologically related to service. 2. The preponderance of the evidence is against a finding that the Veteran’s tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, 3.156(b). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.156(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1955 to October 1961. This appeal is before the Board of Veterans’ Appeals (Board) from November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Board remanded the issues on appeal to the Agency of Original jurisdiction (AOJ) in order to schedule a VA examination for hearing loss and tinnitus. Subsequently, the Veteran was afforded a VA examination on August 2020. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated July 2002. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA’s duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that the Veteran’s service treatment records, are not associated with the claims file and are likely fire-related (i.e., destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973). The Veteran has been informed that VA had been unable to obtain his service treatment records, and that further evidence corroborating his in-service injuries should be submitted if available. The Board is mindful that, in a case such as this, there is a heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when a veteran’s medical records have been destroyed.” Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). While it is unfortunate that some of the Veteran’s service treatment records are unavailable, this appeal must be decided on the evidence of record and, where possible, the Board’s analysis has been undertaken with this heightened obligation set forth in Cuevas and O’Hare in mind. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection for Hearing Loss and Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); see Gilbert v. Derwinski. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In this case, the Veteran seeks service connection for hearing loss and tinnitus disability. The Veteran asserts that current hearing loss and tinnitus disability are directly related to his service in the ARMY with the artillery while he was stationed at Camp Robert. Accordingly, the Veteran stated that he was constantly exposed to artillery and gunfire noises. See VA Form 21-4138 (May 2016) The Veteran stated that his hearing was damaged while serving in the ARMY Artillery at Camp Robert. Moreover, he indicated that he was treated for the hearing loss and tinnitus issue at VA. See Form 9 (December 2019) In August 2020 the Veteran was afforded a VA examination for hearing loss and tinnitus. The Veteran’s puretone thresholds in decibels, were as follow: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 45 35 40 LEFT 25 30 35 40 35 The speech discrimination score was 94 percent for the right ear and 94 percent for the left ear. The examiner diagnosed the Veteran with sensorineural hearing loss. She opined that the Veteran’s bilateral hearing was not at least as likely as not caused by or a result of military service. The rationale was based on the following: There were no audio exams available during the military service. However, there were no hearing loss complaints by the veteran right after the military service (i.e., within 1 year after military discharge). Also, there were no audio exams available post military service. The first report of hearing loss appeared in 01/2002 at age 70, as shown on the Rating decision report dated on 11/26/2002, which indicated that he filed an original disability claim on January 31, 2002. Issue: Service connection for hearing loss and tinnitus. Rating decision report dated on 11/26/2002 indicated that “Efforts to obtain service medical records from all potential sources were unsuccessful. The National Personnel Records Center (NPRC), St. Louis Missouri, in response to VA requests, reported the records may have been destroyed in a fire at the Records Center in 1973. The evidence fails to show that you were treated for a chronic hearing and tinnitus condition in military service, nor does it show that you currently have a chronic hearing loss and tinnitus condition that is related to your military service. There is no record of treatment in service for hearing loss and tinnitus. Therefore, the service connection for hearing loss s is denied. “His job duty as a 911.10 Medical Aidman during active duty service is considered to have a low probability of hazardous noise exposure. There is a lack of evidence in the VA e-folder of any complaints of hearing loss during service and the time between service and the date of the first report of hearing loss is significant without evidence of any audiology treatment in the intervening years. Although today’s audio exam shows hearing loss in the right [and left] ear[s], that is consistent with presbycusis according to the study by Brant & Fozard (1990). Also, the audiogram does not show ‘acoustic trauma induced notch’ type audiometric configuration. Tympanometry revealed abnormal ‘Type C’ tympanogram with significant negative middle ear pressure in the right ear. A study by Institute of Medicine (September 2005) stated that there is no scientific basis for delayed or late onset noise induced hearing loss, i.e., hearing normal at discharge and casually attributable to military noise exposure 20-30 years later. Further, a recent study (Wilson, RH; Colleen, CM; Cruick shanks, KJ; and Wiley, TL, 2010) reported that both veterans and non -veterans were equally likely to have hearing loss and that degree of hearing loss increased with age. Therefore, it is difficult to attribute this recent hearing impairment functioning solely to the trauma suffered during military service and not to consider other factors such as aging and noise exposure from occupational activities after military service. Therefore, his current hearing loss is less likely than not related to military noise exposure. In the August 2020 VA examination for hearing loss and tinnitus, the Veteran reported that his tinnitus occurs in both ears, every day. the Veteran reported that it sounds like a bell ring and last about thirty seconds. The examiner opined that the Veteran’s tinnitus is less likely than not (less than 50% probability) caused by or a result of military noise exposure. For the rationale, the examiner opined that there is a lack of evidence in the VA e-folder of any complaints of tinnitus or hearing loss during service and the time between service and the date of the first report of tinnitus is significant with evidence of any audiology treatment in the intervening years. In the instant case, the August 2020 VA examination report demonstrates that the Veteran has a current hearing loss disability, bilaterally. There is no dispute as to this element of the claim. Furthermore, the Board notes that there is no evidence of a hearing loss disability within one year of service separation. Consequently, service connection is not warranted on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309(a) for a disability present to a compensable degree within the first post-service year. Regarding direct service connection, there is no positive opinion of record to support the claim. The August 2020 VA examiner determined that the Veteran’s current hearing loss is less likely than not related to military noise exposure. Furthermore, the Veteran has also not submitted any medical evidence relating his sensorineural hearing loss and tinnitus to service, other than his general assertions these disabilities are related to service. Although lay persons are competent to report symptoms experienced at any time, as well as provide opinions on some medical issues, the specific disabilities in this case, sensorineural hearing loss and tinnitus, fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical questions. Thus, his statements regarding any such link are assigned less probative value. In summary, the evidence shows that the sensorineural hearing loss and tinnitus disorders were not incurred in service, and that symptoms of these disabilities were not chronic in service, continuous after service separation, or manifest to a compensable degree within one year from service separation. Moreover, no medical professional has ever attributed the sensorineural hearing loss and tinnitus to service, nor is the Veteran competent to make such a link. Based on the foregoing, service connection on direct and presumptive bases is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claims for service connection for sensorineural hearing loss and tinnitus, and the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Javier Peluyera, 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.