Citation Nr: 21064693 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-14 634 DATE: October 21, 2021 THE ISSUE Entitlement to service connection for a bilateral hearing loss disability, to include as due to service-connected tinnitus. ORDER Entitlement to service connection for a bilateral hearing loss disability, to include as due to service-connected tinnitus is denied. FINDINGS OF FACT The Veteran's bilateral hearing loss disability did not have onset during military service or within one year of discharge from service and is not shown to be related to his military service and is not shown to be secondary to, or aggravated by, his service-connected tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability, to include as due to service-connected tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has active-duty service from March 1956 to March 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. This matter was last before the Board in November 2020 at which time the claim was reopened and remanded for further development. As will be discussed below, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a bilateral hearing loss disability, to include as due to service-connected tinnitus is denied. The Veteran has claimed that his bilateral hearing loss disability is related to his active-duty service. He has also claimed that it has been aggravated by his service-connected tinnitus disability. See September 2020 Board hearing. Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 (b). In-service manifestation means 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. Id. Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service-connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes that the Veteran is currently diagnosed with bilateral hearing loss and tinnitus for VA purposes. See March 2018 VA contracted examination; January 2021 VA examination; see also August 2012 private examination; March 2021 private examination. Additionally, the Veteran has credibly testified that he was exposed to loud aircraft, as well as a variety of other acoustic trauma while in service. Indeed, the Veteran's MOS confirms that he was an AC&W Operator. Therefore, the Board finds that the Veteran suffered acoustic trauma in service. The Veteran's Service Treatment Records (STRs) do not contain complaints of hearing difficulties. There is no reliable audiometric data from the Veteran's March 1956 entrance examination. Instead, the Veteran was administered a "whisper test" which is unreliable for VA purposes. Audiometric data from the Veteran's March 1960 exit examination reveals hearing within normal limits. In August 2012, the Veteran submitted a private audiological examination which confirmed a diagnosis of bilateral hearing loss for VA purposes. Mr. R.W., the private audiologist, also opined that the Veteran's current hearing loss was at least as likely as not related to his military experience as an Air Defense Command Crewman, citing excessive noise from "headsets, radios, high pitch signals, static, flight lines, B-24 bomber aircraft, jet aircraft, air flight, 30 caliber carbines and explosions." However, there is no indication that Mr. R.W. had access to the case file or that he had reviewed the Veteran's STRs. The Veteran was afforded a VA contracted audiological examination in March 2018. The examiner confirmed a diagnosis of bilateral hearing loss for VA purposes, but found that the Veteran's current hearing loss was not at least as likely as not associated with his service. In support of this opinion the examiner cited normal audiogram results from service. In a November 2020 decision, the Board found that the examinations of record were inadequate for rating purposes. The Board found that a new VA examination was warranted to determine the etiology of the Veteran's current bilateral hearing loss, including whether or not it has been aggravated by his service-connected tinnitus. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (stating that VA adjudicators are not permitted to substitute their own judgment on a medical matter). The Board directed the examiner to address the findings of the August 2012 private medical opinion and the Veteran's complaints of noise exposure while in service. The Veteran was afforded such an examination in January 2021. The examiner recorded bilateral hearing loss and acknowledged the Veteran's in-service noise exposure. However, the examiner opined that the Veteran's current bilateral hearing loss was less likely than not related to his service. In support of this opinion, the examiner offered a remarkably detailed rationale which discussed the current state of medical research and consensus on noise-induced hearing loss. After detailing several studies, the examiner explained that ultimately, "there is no conclusive data supporting delayed-onset noise-induced hearing loss." The examiner cited normal hearing data on the Veteran's exit examination and a lack of complaints of hearing difficulties in service. Additionally, the Veteran was noted to only notice hearing loss three years after separation from service. The examiner cited an extensive history of post-service occupational noise exposure "as an electronics plant worker, iron worker out of Local 48 shop in Chicago, construction worker cleaning out fuel tanks at Tinker field, truck driver, and maintaining grounds at lakes in Oklahoma City and recreational noise exposure from hunting." The examiner also opined that the Veteran's bilateral hearing loss was less likely than not caused or aggravated by his service-connected tinnitus. The examiner cited current research and explained that tinnitus could be a symptom of hearing loss, but there was no evidence that hearing loss was caused by tinnitus. The January 2021 report acknowledged the findings of the August 2012 private examiner but noted that the examiner did not conduct a review of the Veteran's case file or STRs before rendering his opinion. The Veteran submitted a new private audiological examination with opinion in March 2021 authored by Dr. B.W. Again, the examination showed bilateral hearing loss. Dr. B.W. described the Veteran's in-service acoustic trauma and made the following statement: "After reviewing his service background and noting potential noise exposure levels, it is as likely as not that the [Veteran's] hearing loss was the result of noise exposure while serving in the military." There was no further rationale, and it is unclear which documents, if any, Dr. B.W. reviewed. The private examiner also did not address the Veteran's extensive, post-service noise exposure. The Board therefore finds that the March 2021 private nexus opinion is not probative, as it is conclusory and unsupported by adequate rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In determining the likelihood of a nexus between a current disability and an in-service injury, a VA medical examiner cannot rely solely on the fact that a claimant's hearing was within normal limits for VA purposes, or non-ratable under 38 C.F.R. § 3.385, at the time of her or his separation from service. See Hensley, 5 Vet. App. at 159. Here the January 2021VA negative nexus opinion, does not rest solely on the fact that the Veteran's separation exam shows hearing results within normal limits. Significantly, the examiner also cited: 1) post-service noise exposure; and 2) no scientific basis for the existence of prolonged delay in the onset of hearing loss due to acoustic trauma, as determined by cited medical literature. In the present case, the Board can identify no basis in the record for finding that the examiner's opinion does not represent sound medical reasoning and accurate consideration of the record evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board thus concludes that a preponderance of the evidence establishes that the Veteran did not incur a chronic disease in service. In the same vein, the January 2021 VA examiner opined that the Veteran's bilateral hearing loss was less likely than not caused or aggravated by his service-connected tinnitus and provided supporting rationale. Again, the Board can identify no basis in the record for finding that the examiner's opinion does not represent sound medical reasoning and accurate consideration of the record evidence. Id. While competent to report his past and current symptoms of hearing difficulty, the Veteran has presented no probative clinical evidence of a nexus between his bilateral hearing loss disability and military service or service connected. While the Board acknowledges that the private opinions of record, they lack probative value for the reasons noted above. As a layperson, the Veteran is not competent to associate his currently diagnosed bilateral sensorineural hearing loss to acoustic trauma during service or with his tinnitus. Such opinions require specific medical training. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to a nexus between his bilateral hearing loss disability and his military service to be of no probative value. See Layno, 6 Vet. App. at 469-70 (1994); Jones, 7 Vet. App. at 137 (1994); see also 38 C.F.R. § 3.159 (a)(1) (2019). The Board has also considered whether service connection should be presumed based on a chronic disease or a continuity of symptomatology. See 38 C.F.R. § 3.303 (b) (2021). However, the service treatment records, including the separation examination, do not reflect that hearing loss was shown during service nor does the evidence reflect that the Veteran had sensorineural hearing loss to a compensable degree within one year of discharge from service. Instead, the first indication of hearing loss arises several years after separation from service. As the Veteran himself testified in the September 2020 Board hearing, he first noticed symptoms associated with hearing loss three years after separation from service, well outside of service or the one-year period after separation. When the fact of chronicity in service is not adequately supported, service connection may be established by a showing of continuity of symptomatology after discharge. See 38 C.F.R. § 3.303 (b) (2021). Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). As noted above, the Veteran has not made a contention of continuing symptomatology since service and testified that that he began noticing hearing loss three years after separation. See September 2020 Board hearing. Thus, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.