Citation Nr: 21001972 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-54 968 DATE: January 12, 2021 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The symptoms of tinnitus were not chronic in service, did not manifest to a compensable degree within one year of separation, and were not continuous since service separation. 2. The preponderance of the evidence is against finding that the Veteran’s tinnitus was incurred in or otherwise related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1973 to December 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the July 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the claim in December 2018 to provide the Veteran a VA examination. Pursuant to the remand, a VA examination and medical opinion were obtained in October 2019 and has been associated with the electronic claims file. The claim has now returned to the Board for further appellate consideration. Service Connection - Pertinent Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). 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). Tinnitus is considered by VA to be an “organic disease of the nervous system,” one of the “chronic diseases” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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). A layperson is competent to report the onset and continuity of his or her current symptomatology, to include reduced hearing acuity. See Layno, 6 Vet. App. 469- 470 (a Veteran is competent to report on that of which he or she has personal knowledge). In addition, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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. Analysis The Veteran is currently diagnosed with tinnitus. See VA Examination and Report, dated October 14, 2019. The Veteran asserts that his currently diagnosed tinnitus is the result of in-service noise exposure. In his VA Form 9, the Veteran stated that he felt his current problems, including tinnitus, stem from his active duty service, and feels that his service records will substantiate this. See VA Form 9, dated November 1, 2016. The Veteran’s DD Form 214 reflects that his military occupational specialty (MOS) was that of an aircraft structures mechanic, which has a high probability of noise exposure. As such, the Veteran is presumed to have been exposed to acoustic trauma in service. Notwithstanding exposure to acoustic trauma in service and the current diagnosis, the Board concludes that the Veteran’s tinnitus was not chronic while in service, did not manifest to a degree of 10 percent within the applicable period, was not continuous since service, and the preponderance of the evidence weighs against finding that his tinnitus is otherwise related to service including the loud noise exposure. Turning to the evidence, there is no evidence of tinnitus complaints, treatment or diagnosis. According to a December 1978 Report of Medical Examination, clinical evaluation of the Veteran’s ears and drums was normal. On the corresponding December 1978 Report of Medical History, the Veteran specifically checked “NO” as to having had any ear trouble. For these reasons, the Board finds that there is no evidence showing that the Veteran had chronic symptoms of tinnitus during service. The Board also finds that the evidence of record does not establish any clinical manifestations of tinnitus to a degree of 10 percent or more within the applicable time period; as such, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. See 38 C.F.R. § 3.307(a)(3). The Board next finds that symptoms of tinnitus were not continuous since service separation. Post-service VA treatment records are negative for complaints of tinnitus for decades. In fact, the first mention of tinnitus in the record is not shown until the Veteran filed this claim for compensation. Moreover, the Veteran himself reported that his tinnitus began only five years prior to his October 2019 VA examination, which is decades after service separation. The Board finds that this multi-decade lapse of time between service separation and his tinnitus complaint is one factor that weighs against a finding that the Veteran’s tinnitus is related to service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran’s entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints). Moreover, the Board finds that the weight of the evidence is against a finding of a nexus between the Veteran’s currently diagnosed tinnitus and his active service. In October 2019, VA afforded the Veteran a VA compensation examination in connection with this claim. The Veteran reported he began experiencing bilateral ringing tinnitus 5 years ago, described as constant, which interfered with his ability to fall asleep. The VA examiner, an audiologist, opined that the Veteran’s tinnitus was less likely as not related to his active military service. The examiner reasoned that the Veteran had reported the onset was five years ago, which is more than 35 years after separation; that there was no report of tinnitus in the service treatment records including at separation; that there is no report of tinnitus until the time of the claim in question; and that the current literature does not support late onset noise-induced tinnitus. The Board finds the October 2019 VA medical opinion to be probative and provides it significant weight, as the examiner reviewed the Veteran’s claims file and provided an opinion supported by a clear and thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the Board finds that the October 2019 VA medical opinion weighs against a finding that the Veteran’s tinnitus is etiologically related to service. The Board also considered the Veteran’s statement purporting to relate his currently diagnosed tinnitus to active duty. However, as a lay person, the Veteran is not shown to possess the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of tinnitus. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Such competent evidence has been provided by the October 2019 VA audiologist, and the Board attaches greater probative weight to the highly probative VA audiology opinion than to the Veteran’s lay statements. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for tinnitus, and the claims must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran also seeks service connection for bilateral hearing loss. As initial matter, the Veteran has sensorineural hearing loss in both ears that meets the criteria of 38 C.F.R. § 3.385 and as determined above, the Board concedes in-service noise exposure. However, upon review, the Board finds that additional development is needed prior to adjudicating this claim on the merits. As indicated, the Veteran was afforded a VA audiology examination in October 2019 and the VA audiologist also opined that the Veteran’s bilateral hearing loss is less likely as not related to service. The VA examiner reasoned that the Veteran’s induction and separation audiological examination reports were within normal limits in both ears. The examiner further noted that there was no clinically significant threshold shift in hearing sensitivity, and that there is no evidence in the record that the Veteran sustained noise injuries based on the audiograms. The examiner then indicated that the American College of Occupational Medicine Noise and Hearing Conservation Committee stated that noise-induced hearing loss does not progress once it is stopped. The Board finds deficiencies in the examiner’s rationale. First, the hearing loss opinion appears to be based, at least in part, on an inaccurate factual premise. In this regard, the Veteran’s exit audiogram showed the Veteran’s hearing acuity in the left ear was 25 decibels at 500 and 1000 Hertz and per Hensley v. Brown, 5 Vet. App. 155, 157 (1993), any threshold higher than 20 decibels indicates some degree of hearing loss. Second, the unfavorable October 2019 VA hearing loss opinion was based in large part on the lack of documentation of hearing loss in service and did not comment on the Veteran’s in-service noise exposure. See Dalton v. Nicholson, 21 Vet. App. 23, (2007) (examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). Third, the examiner stated that the Veteran did not have a noise injury in service but then referred to a Committee statement that noise-induced hearing loss does not progress once it is stopped; such reference appears to imply that the Veteran may have had noise induced hearing loss in service but that it stopped upon separation. In other words, the examiner’s rationale is unclear. For these reasons, a new VA medical opinion with regard to the etiology of the Veteran’s hearing loss is needed. The matters are REMANDED for the following actions: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, forward the Veteran’s claim file to the audiologist who conducted the October 2019 medical opinion, if available, for the purpose of obtaining another medical opinion as to the nature and etiology of the Veteran’s current bilateral hearing loss disability. If the same examiner is unavailable, request an addendum opinion from an appropriately qualified VA clinician. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current bilateral hearing loss disability is a result of the conceded in-service loud noise exposure. (i) In doing so, specifically address the apparent shift in left ear hearing loss at 500 and 1000 Hertz in the December 1978 Report of Medical Examination audiogram; (ii) consider the Veteran’s lay reports of the gradual onset of his hearing loss from service; and (iii) explain the October 2019 examiner’s reliance on the statement cited from the American College of Occupational Medicine Noise and Hearing Conservation Committee. Does the examiner opine that the Veteran had noise-induced hearing loss while in service? A complete rationale for all proffered opinions must be provided. (Continued on the next page)   3. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.