Citation Nr: 21061529 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-34 469 DATE: October 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest during service and an organic disease of the nervous system (sensorineural loss) was not manifest within one year of separation. A bilateral hearing loss disability is unrelated to service. 2. Tinnitus was not manifest during service and an organic disease of the nervous system was not manifest within one year of separation. Tinnitus is not related to service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to August 1972. Service Connection Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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 -the so-called 'nexus' requirement." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Sensorineural hearing loss, is considered an organic disease of the nervous system, which is identified as a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). "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, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.' When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim." 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran maintains that his hearing loss disability and tinnitus are related to active service. He states that his role as an artillery surveyor contributed to both disorders. VA has conceded that noise exposure is moderately-probable. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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. During an enlistment examination in December 1969, the Veteran underwent an audiological examination. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 X 0 LEFT 15 15 10 X 15 Service treatment records document that the Veteran had "ear, nose and throat" trouble prior to service. However, the document indicates that this issue was related to tonsilitis. Additional service treatment records, however, do not document any relevant treatment, complaints, symptoms, or diagnoses specific to bilateral hearing loss or tinnitus. During his separation examination in August 1972, the Veteran underwent an audiological examination. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 X 10 LEFT 10 10 15 X 10 On the separation examination, the Veteran's ears and drums had a clinical evaluation of "normal." The separation examination does not document any relevant treatment, complaints, symptoms, or diagnoses specific to bilateral hearing loss or tinnitus. The first medically recorded signs of bilateral hearing loss disability and tinnitus was during the Veteran's VA examination in April 2017. The results for the audiological examination were as follows: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 30 25 25 35 50 96% LEFT 30 25 25 45 60 96% The VA examiner established that the Veteran has bilateral hearing loss disability. However, the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was related to service. The examiner wrote "There must be evidence indicating that a disability was incurred or aggravated in the line of duty. Conceded exposure to acoustic trauma (e.g. MOS) is neither an injury nor a disease and is not sufficient to establish line of duty injury or disease. According to Smith v Shinseki, 24 Vet. App. 40, 48 (2010), competent, credible evidence of a line of duty injury or disease is needed. The Veteran's service records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. The Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was 'unlikely.' Studies from Lee, Matthews, Dubno, Mills (2005); Cruickshanks et al 2010; and Hoffman et al (2015) show that past noise history had no significant effect on rates of threshold changes later in life. Based on the objective evidence available, there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the Veteran's military service, including noise exposure." The examiner also concluded that it was less likely than not that the Veteran's tinnitus was related to service. The examiner wrote "The Veteran had normal hearing on his enlistment and separation exams with no shifts in hearing threshold levels during his service time. Because there is no objective evidence of noise injury, there is no basis on which to conclude that the claimed tinnitus is associated with such injuries. It is on an a less likely as not basis that the Veteran's tinnitus was created and/or aggravated by his hazardous military noise exposure while serving in the military." In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the April 2017 VA medical opinions that the Veteran bilateral hearing loss and tinnitus are less likely than not related to service as highly probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds these medical opinions to be highly probative as they are adequately supported by additional rationale, including citation of caselaw and medical studies. The Board has considered the lay statements of the Veteran regarding his bilateral hearing loss disability and tinnitus. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner's opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner's medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of bilateral hearing loss or tinnitus during active service, or within a year of separation. The Veteran separated from active service in August 1972. Hearing loss, to include hearing loss disability. Or an organic disease of the nervous system were not noted during service. The Veteran did not have characteristic manifestations sufficient to identify the disease entity. 38 C.F.R. § 3.303(b). Objective medical testing did not document a hearing loss disability until at the earliest forty-five years after separation. Notably, the first chronological evidence that the Veteran had a hearing disorder is when he filed his compensation claim in August 2016. Here, there is no competent evidence of hearing loss or hearing loss disability during service or within one year of separation. There is no credible evidence of tinnitus until long after separation. In sum, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus. The claims must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.