Citation Nr: 21064239 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-57 222 DATE: October 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The competent, credible and probative evidence is against finding that the Veteran's bilateral hearing loss is due to a disease or injury in service. 2. The competent, credible and probative evidence is against finding that the Veteran's tinnitus is due to a disease or injury in 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, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for tinnitus have not been 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 from June 1978 to December 1978. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2021. A transcript of that hearing is associated with the record. The Board notes that after the appeal of these issues were certified to the Board in December 2016, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in June 2018 requesting a higher-level review. However, the Veteran was notified in September 2018 that his claim was eligible for processing under RAMP because his appeal was already activated in the legacy system. Thus, the issues appealed will be reviewed de novo under the Legacy System. SERVICE CONNECTION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that his bilateral hearing loss and tinnitus is causally related to his service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss, and tinnitus. However, the competent, credible evidence does not show that the Veteran was most likely exposed to acoustic trauma in service as he has described; the evidence is against finding that the Veteran's bilateral hearing loss and tinnitus began during service or is otherwise related to, or aggravated by, an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). The Veteran's service treatment records (STRs) include a May 1978 enlistment examination and a November 1978 separation examination. No related defects or diagnosis were noted. Audiometric testing recorded as part of the separation examination showed a slight improvement in threshold shifts when compared to his entrance examination six-months prior. On the Report of Medical History completed by the Veteran in November 1978, he answered "no" to having or having had any hearing loss or ear, nose and throat problems. STRs are also silent for any complaints involving the Veteran's hearing, to include treatment for exposure hazardous noise during training. In addition, there is no evidence that compensable hearing loss was shown within one year of the claimant's separation from active duty. Military personnel records show that the Veteran military occupational specialty (MOS) was a 76 Yankee, which is supply and small arms repair. On VA audiological examination in May 2014, bilateral hearing loss for VA compensation purposes and tinnitus were shown. However, the examiner provided a negative nexus opinion because the Veteran did not have a significant shift in thresholds for the worse when comparing entrance to exit audiograms. Additionally, there is no medical evidence in the claims file that indicates any complaints of hearing loss and tinnitus for more than 30 years after service. The examiner further opined that it is highly probable that current VA evaluation shows a bilateral hearing loss that is due to hearing loss expected as a normal aging process. The examiner also opined that although, the Veteran has a diagnosis for tinnitus, his tinnitus is more likely than not associated with the onset of his bilateral hearing loss, as tinnitus is known to be associated with hearing loss. In further support of this opinion, the examiner noted that the Veteran stated that he has intermittent tinnitus for few years but could not indicate the circumstance of onset of the tinnitus. During the July 2021 hearing, the Veteran testified that he was unaware of having hearing loss until his wife started telling him he was going deaf and that he couldn't hear. The first audiological examination since leaving active service was during his May 2014 VA examination. The Veteran was also unsure when his tinnitus started, but believed it started during his training during active service. The Board finds the May 2014 VA examination opinion probative. The Veteran's records do not support his claim. The separation examination does show hearing loss during service. Additionally, on the Report of History completed by the Veteran, he answered "no" specifically to the questions of whether he has or had any hearing loss or trouble with his ear, nose and throat. Furthermore, the Veteran made inconsistent statements of when and how his hearing loss started. Thus, the Veteran's report of how or when his hearing loss and tinnitus began is not credible. Although lay persons are competent to provide opinions on some medical issues, bilateral hearing loss is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Regarding the Veteran's tinnitus, the record does not reflect that the Veteran complained of or sought treatment for tinnitus during service or within one year following service. The record also does not support any continuity of symptoms of tinnitus following service. In summary, the competent, credible and probative evidence shows that the Veteran's bilateral hearing loss disability and tinnitus was not incurred or caused by his military service. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. Service connection for bilateral hearing loss and tinnitus is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a psychiatric disorder is remanded. The claim must be remanded to obtain outstanding treatment records. The May 2014 VA examiner specifically referenced reviewing private psychiatric treatment records that are not associated with the record. At the hearing, the Veteran testified that that he is treated by a private mental health provider. VA must attempt to obtain these records on remand. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with the Veteran's assistance identify and obtain copies of any pertinent private psychiatric and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified, and the record noted regarding the attempts to obtain the records. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the claim. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.