Citation Nr: 21063323 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-43 939 DATE: October 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from December 1970 to March 1973. This appeal arises from a December 2015 Department of Veterans' Affairs (VA) Regional Office (RO) decision denying service connection for bilateral hearing loss and tinnitus. These matters were previously before the Board of Veterans' Appeals (Board) in March 2020. The Board remanded the matter for further development at the time. The Board finds substantial compliance with its prior remand directives and as such proceeds with further appellate development. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 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. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease 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). When there is an approximate balance of positive and negative evidence regarding a matter of any issue material to the determination of the matter, the benefit of doubt will be given to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (holding that a Veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran contends his hearing loss is due to his service. Specifically, he contends his hearing loss and tinnitus were caused by working for an artillery unit during his service in the Marine Corps and firing of his service weapons. See August 2017 VA Form 9. Turning to the evidence of record, it is established that the Veteran is currently diagnosed with tinnitus and bilateral hearing loss for VA purposes. As such, the element of a current disability for service connection is met for both disabilities. Similarly, in-service hazardous noise exposure has also been conceded based on his military occupational specialty (MOS) as a field artillery cannoneer. As such, the in-service element is also met for both disabilities. Therefore, the question before the Board is whether there is a medical nexus connecting the disabilities to the Veteran's military service, to include in-service noise exposure. The Veteran was afforded a VA examination in July 2015. An addendum opinion was obtained in March 2020 based on all the evidence of record because the Board previously found the July 2015 examiner's opinion, but not the examination itself, inadequate. See March 2020 Board Decision (finding the provided rational by the July 2015 VA examiner to be inadequate). The Board finds the March 2020 VA addendum opinion adequate for adjudication purposes. The March 2020 examiner provided a negative nexus opinion for both bilateral hearing loss and tinnitus. The reasoning for both is nearly identical. The March 2020 examiner reviewed the entire file and identified the pertinent evidence of record. This included the facts that the Veteran was a field artillery cannoneer working with 105 mm Howitzers. The examiner noted the Veteran's reported onset date in the 1980s, years after the Veteran's service. The examiner also noted the Veteran's post service work as a hazardous materials person for the United States Air Force and the lack of any specific mention of exposure to acoustic trauma. The examiner also addressed the Veteran's statements regarding firing of his service rifle in his right hand and that the Veteran's hearing loss is more significant on the right side. The examiner explained that it is widely known and there is a large body of research showing that hearing loss is worse on the opposite side when firing weapons. This means that if the Veteran's hearing loss was caused by his firing of his weapon, it should be worse in the left ear as a right-handed shooter. The evidence does not support this because the Veteran's hearing loss is worse in his right ear. The examiner noted that the Veteran denied hearing loss on his December 1970 enlistment examination. He also noted that the Veteran's hearing was normal at all frequencies on his March 1973 separation hearing examination. The examiner noted that there is no report of hearing loss or tinnitus any time during the Veteran's military service. The examiner also noted that the Veteran's hearing loss and tinnitus were first seen more than 30 years after his service ended. Therefore, the examiner opined that the Veteran's hearing loss is less likely than not due to his military service that based on the provided rationale and the Veteran's self-reported onset date after his military service ended. Here, the March 2020 medical opinion of record constitutes probative evidence weighing against a link between the Veteran's bilateral hearing loss and tinnitus and his military service. The opinion represents the conclusion of a medical professional with sufficient expertise, is based on the Veteran's medical history, and is support by a clear explanation sufficient for the Board to make an informed decision. Notably, the Veteran has not provided any competent medical evidence or opinion to the contrary, or identified evidence that diminishes the probative value of the VA opinions against the claim. Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board finds that although the Veteran contends that bilateral hearing loss and tinnitus is due to service, he is not competent to make that conclusion. Although lay persons are competent to provide opinions on some medical issues, such as the onset of hearing loss or tinnitus, the issue of whether delayed onset hearing loss or tinnitus is related to service falls 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). Therefore, the Board accords significantly more weight to the medical evidence than to lay assertions. Even considering the lay statements with regard to the matters they are competent to address, the most probative evidence weighs against the claim of entitlement to service connection for bilateral hearing loss and tinnitus, as the Veteran reported onset a decade after separation. Therefore, the Board finds that the medical evidence of record is more persuasive because of the training, experience, and rationale provided by the examiner. As such, the evidence of record does not establish a medical nexus between the Veteran's current disabilities and the in-service events. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) for the hearing disabilities and service connection based on a continuity of symptomatology under 38 C.F.R. § 3.303(b). The Veteran's reported onset of symptoms was approximately 30 years prior to his July 2015 VA examination. This places onset in the mid-1980s, which is over a decade after separation from service. No other evidence indicates an earlier onset. As such, the Board finds that the probative evidence does not indicate that the disability manifested within a year of separation of service or that it occurred continuously since discharge from service. Therefore, presumptive service connection and service connection based on continuity of symptomatology are not warranted. Based on the foregoing reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim. The benefit of the doubt rule does not apply in this case. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107(b). As such, the Veteran's claims for service connection for bilateral hearing loss and tinnitus must be denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.