Citation Nr: 21063654 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 20-12 427 DATE: October 15, 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 Veteran's current bilateral hearing loss did not have its onset in service, is not otherwise related to an in-service injury or disease and did not manifest to a compensable degree within a year after separation from service. 2. The Veteran's current tinnitus did not have its onset in service, is not otherwise related to an in-service injury or disease and did not manifest to a compensable degree within a year after separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 through August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claims were previously remanded by the Board for additional development in July 2020. Specifically, the claims were remanded to obtain outstanding private and VA treatment records and to obtain an etiology opinion. Updated VA treatment records have been associated with the file and a July 2020 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain private treatment records on his behalf. A VA etiology opinion was obtained in March 2021. The Board therefore determines that there has been substantial compliance with its previous remand. Service Connection 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 may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Additionally, in Fountain v. McDonald, 27 Vet. App. 258 (2015), the United States Court of Appeals for Veterans Claims (Court) determined that tinnitus is an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For purposes of applying the laws administered by VA, the criteria for hearing impairment to be considered as a "disability" is when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus is denied. The Veteran has asserted entitlement to service connection for bilateral hearing loss and tinnitus. Specifically, the Veteran alleges that his current bilateral hearing loss and tinnitus is due to in-service exposure to hazardous noise exposure to helicopters without ear protection. In a June 2020 appellant brief, the Veteran's representative argued that service connection is warranted as the Veteran had exposure to helicopter noise without hearing protection. The representative also referred to treatise evidence showing there may be a correlation between early noise exposure and late-in-life hearing loss and tinnitus. Service treatment records are silent for any complaints, treatment, and/or diagnoses relating to hearing loss and/or tinnitus. The Veteran's entrance audiological examination, taken upon enlistment in May 1965 made normal findings for hearing. Subsequent audiological evaluations in November 1965 and August 1967 revealed findings of normal hearing. In associated medical history reports, the Veteran also specifically denied hearing loss and ear trouble. In a December 2017 VA progress note, the Veteran reported subjective difficulty hearing for many years. He stated that conversations are becoming more difficult. He reported he served in the Army for two years and reported a history of military noise exposure to helicopter noise without the use of hearing protection. Pure tone testing revealed asymmetric hearing loss. In a January 2018 VA progress note, the Veteran reported a history of hearing loss for decades. He reported a history of noise exposure from helicopter maintenance. He noted bilateral non-bothersome tinnitus without laterality. The Board has first considered whether service connection for bilateral hearing loss and/or tinnitus is warranted on a presumptive basis. In this regard, the clinical evidence of record fails to show that the Veteran manifested hearing loss and/or tinnitus to a compensable degree within the year following his discharge from active duty service. The Veteran has indicated that his hearing loss and tinnitus had its onset "decades ago" based on a statement made during his January 2018 VA progress notes. However, objective evidence of the Veteran's hearing loss was first documented in February 2018, more than forty years after the Veteran's separation from service. Even considering the private audiograms showed to the February 2018 VA examiner indicated hearing loss, the first objective evidence of hearing loss would be in 1997, more than thirty years after separation from service. Service treatment records are negative for complaints, treatments or diagnoses related to tinnitus and/or bilateral hearing loss. Therefore, the Board finds that presumptive service connection for tinnitus and/or bilateral hearing loss as an organic disease of the nervous system, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, the Veteran underwent a VA examination in February 2018. The examiner noted the Veteran provided copies of private hearing tests from 1997 and from 2010 to 2011. He also submitted letter written by ENT, Dr. W. stating that exposure to loud noises of the sanders and compressors were causing him to suffer significantly from hearing loss. He was found to be a candidate for hearing aid use at that time. After an audiological evaluation, the examiner reported a diagnosis of sensorineural hearing loss in both the left and right ears. The examiner found that the Veteran's hearing loss was not at least as likely as not caused by or a result of service as the Veteran had normal hearing sensitivity from 500 Hertz to 4000 Hertz when entering and separating from the Army. The examiner noted that his military occupational specialty (MOS) of Food Service Specialist had a low probability for exposure to hazardous noise and the examiner noted that occupationally, he was exposed to loud noise for 50 years as a carpenter, using hammers, drills, sanders, and compressors on a regular basis without consistent hearing protection. The examiner noted that the Veteran stated that his hearing loss became noticeable approximately 20 years ago, which is 40 years following reported exposure to helicopter noise in military service. The examiner also found tinnitus was less likely than not the result of military noise exposure as the Veteran did not notice any type of tinnitus for over 30 years following military service and most often tinnitus related to noise exposure would occur at the time of noise exposure. The Board notes that this opinion was found to be inadequate in the July 2020 Board remand. The Veteran underwent an additional VA examination in March 2021. The Veteran reported that prior to entering the military he worked as a carpenter for a "couple years" without the use of hearing protection. During his military service, the Veteran reported a MOS of food service specialist with exposure to helicopter noise on the base where he was stationed and that he also qualified on M16s on the range on one occasion. He reported that hearing protection was not used. Post-military, the Veteran reported that he worked for 40 years as a carpenter (tile setter) before retiring in 2007 and that hearing protection was not used. After an audiological evaluation, the examiner reported a diagnosis of sensorineural hearing loss in both the left and right ears. The examiner noted that the Veteran's MOS of food service specialist has a low probability of hazardous noise exposure, that audiograms obtained at both entrance and separation from military reveal normal hearing sensitivity without significant threshold shift and that the Veteran reported a significant history of occupational noise exposure both before and after military service without the use of hearing protection. Therefore, the examiner opined that the present hearing loss is less likely than not caused by or the result of military noise exposure. With regards to tinnitus, the Veteran reported that he was not sure when it first started but as he got older it seemed to worsen. The Veteran reported that his tinnitus is intermittent and occurs "when everything is quiet." The March 2021 VA examiner opined that the Veteran's tinnitus was less likely than not incurred in or caused by in-service injury. The examiner noted that as the Veteran is unable to associate the onset of tinnitus military service, and there is a significant history of post-military occupational noise exposure, tinnitus is less likely than not caused by or the result of military noise exposure. The examiner noted that a 40-year history of occupational noise exposure while working as a carpenter is far more likely to have caused the present tinnitus than the one year and nine months history of noise exposure in the military. The Board finds the March 2021 VA opinion to be highly probative as the VA examiner first examined the Veteran and then provided opinions based on a thorough review of the claims file and supported the opinions with adequate rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, supra. Further, the VA examiner's opinion relied on sufficient facts and provided rationale and sound reasoning for the opinion. Id. There is no contrary opinion of record. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. As a lay person, the Veteran is competent to report observable symptoms, such as having difficulty in hearing and ringing in his ears. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. While the Veteran is competent to report having experienced symptoms of difficulty hearing and ringing in his ears, he is not competent to provide a diagnosis in this case or to determine that these symptoms are somehow related to his active service. This issue of diagnosing a hearing disorder is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence in this case. Thus, the Board finds that the preponderance of evidence rests against the Veteran's claims. Accordingly, the Veteran's claims for service connection for bilateral hearing loss and tinnitus must be denied. The benefit of the doubt doctrine is not application here as the preponderance of the evidence rests against the Veteran's claims. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.