Citation Nr: 21065455 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-11 000 DATE: October 26, 2021 ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss disability did not have onset during service, did not manifest to a compensable degree within the first post-service year; and, it is not otherwise related to disease or injury in service. 2. The Veteran's tinnitus did not have onset during service, did not manifest to a compensable degree within the first post-service year; and, it is not otherwise related to any disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 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, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to October 1977. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied service connection for tinnitus and reopened the issue of service connection for a bilateral hearing loss disability but denied the claim on the merits. In July 2017, VA received the Veteran's Notice of Disagreement (NOD). In June 2018, the RO issued a Statement of the Case (SOC). In July 2018, VA received the Veteran's VA Form 9 appeal to the Board. In February 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In February 2021 the Board reopened the issue of service connection for a bilateral hearing loss disability and remanded the case for further development and adjudicative action. In addition, the Board reopened claims of service connection for a right ankle disability and obstructive sleep apnea. These reopened claims, along with the claim of service connection for tinnitus, were also remanded for additional development of the record. Before the case was returned to the Board on appeal, the RO granted service connection for obstructive sleep apnea (OSA) in a June 2021 rating decision; and, in a separate June 2021 rating decision, the RO granted service connection for post-traumatic right ankle arthritis. As these grants of service connection constitute a full grant of benefits sought on appeal with respect to those claims, the issues of service connection for OSA and a right ankle disability are no longer in appellate status or before the Board. Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. The Veteran contends that his claimed bilateral hearing loss disability and tinnitus are related to in-service noise exposure while serving as a cannoneer. During the February 2020 Board hearing, the Veteran described daily exposure to noise from artillery and other excessive noise during service, often without appropriate hearing protection. See February 2020 Board hearing transcript at 9; see also October 2018 Veteran statement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases, including sensorineural hearing loss and tinnitus as organic diseases of nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). At the outset, the Veteran's DD Form 214 reveals that he had a military occupational specialty (MOS) of cannon crewman. Therefore, his description of exposure to hazardous noise from small arms, artillery, and tanks is consistent with the circumstances of his service and is credible in this regard. Nonetheless, service treatment records (STRs) do not show evidence of subjective complaints of hearing loss or tinnitus during service. The Veteran received an audiogram in August 1974 prior to entrance into service. As indicated by a slash through the 3000 Hertz section of the audiogram results, hearing at the 3000 Hertz frequency was not tested. Nonetheless, puretone thresholds from that audiogram are as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 10 0 N/A 0 Left 10 10 10 N/A 15 Thereafter, the Veteran received an August 1977 audiogram prior to separation. Hearing at the 3000 Hertz frequency was again not tested. Puretone thresholds from that audiogram are as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 5 5 N/A 5 Left 10 5 5 N/A 5 Following service, a November 2013 VA medical record, which documented "decreased hearing bilaterally" during a physical examination, provides the first post-service evidence of bilateral hearing loss. See VA addendum dated November 13, 2013. Furthermore, the Veteran first reported tinnitus during a March 2017 VA audiological evaluation. Specifically, he reported "occasional bilateral ringing tinnitus (ringing) since 2000." Additionally, regarding the bilateral hearing loss, the Veteran reported "difficulty hearing/understanding speech ... since 2000." VA audiological note dated March 9, 2017. However, the Veteran has also stated that he also first noticed hearing loss and tinnitus during service. See February 2020 Board hearing transcript at 10. However, given that Veteran's statements to VA treatment providers indicate onset of hearing loss and tinnitus over 20 years after separation from service, his statements concerning in-service onset are not found credible in this regard. The Veteran received an initial VA examination for his bilateral hearing loss disability and tinnitus in May 2017. Puretone thresholds during the examination were as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 15 15 10 20 Left 10 10 15 20 25 Speech discrimination scores (using the Maryland CNC word list) revealed scores of 92 percent for the right ear and 92 percent for the left ear. As speech discrimination in both ears is less than 94%, the criteria for a hearing loss disability for VA purposes have been met. Furthermore, the examiner certified that use of the word recognition scores was appropriate. Accordingly, the May 2017 examination provides evidence of a current bilateral hearing loss disability for VA purposes. However, following the February 2021 Board remand, in April 2021, the Veteran was afforded another examination for his bilateral hearing loss disability and tinnitus. The April 2021 examiner indicated that the Veteran's hearing could not be evaluated through use of an audiogram. In this regard, the examiner found that the test results were "too unreliable to be compatible with organic hearing loss." The examiner reasoned that "test retest response variability exceeded 5 [decibels]." Furthermore, the examiner opined that speech discrimination testing using the Maryland CNC word, which revealed speech discrimination scores of 36 percent for the right ear and 24 percent for the left ear, were also "likely invalid" for the same reasons. As previously noted, the Board has conceded that the Veteran has a bilateral hearing loss disability for VA purposes. Nonetheless, the April 2021 examiner provided an adequate justification for inability to record puretone thresholds and invalidity of the speech discrimination scores and, as such, omission of the puretone thresholds in the examination report does not constitute error in this regard. Furthermore, both the May 2017 and April 2021 examiners provided etiology opinions for the bilateral hearing loss disability and tinnitus notwithstanding the ambiguity regarding the Veteran's bilateral hearing loss diagnosis. The May 2017 examiner opined that the Veteran's bilateral hearing loss disability and tinnitus were less likely than not a result of noise exposure during service. Regarding the bilateral hearing loss disability, the examiner reasoned that there were "no permanent shifts in hearing from entrance to exit." However, the examiner also erroneously noted that "hearing per VA standards does not meet the criteria for hearing loss"; as discussed above, the Veteran's right and left speech discrimination scores of 92 percent in each ear constitute evidence of a current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Regarding the tinnitus, the examiner noted again that there were "no permanent shifts in hearing" during service. Next, the April 2021 examiner similarly opined that the Veteran's bilateral hearing loss disability and tinnitus were less likely than not related to service. Regarding the bilateral hearing loss disability, the examiner acknowledged the Veteran's service as a cannoneer and exposure to noise from tanks, weapons, and gunfire. However, the examiner noted that the Veteran's entrance and separation audiograms were within normal limits and that the separation audiogram was not "significantly worse" than the entrance audiogram. The examiner concluded that the separation audiogram provided "objective evidence of normal hearing at the time of separation and makes it less likely than not that military service noise exposure resulted in hearing loss." Regarding the tinnitus, the examiner reasoned that "[t]innitus that is associated with noise over-exposure is both immediate in onset and constant." Additionally, the examiner noted that the Veteran's description of "tinnitus that occurs about 6 times a month and that lasts 15 to 20 minutes" was evidence of "brief and temporary head noise or tinnitus, not the constant tinnitus associated with noise over exposure." Finally, the examiner indicated that "[b]rief and temporary tinnitus is not associated with noise exposure." Regarding the probative value of the above opinions, the May 2017 examiner provided similar, brief opinions for the bilateral hearing loss disability and tinnitus. Furthermore, the opinion for hearing loss contains a methodological error regarding assessment of the Veteran's hearing loss. Given also receipt of additional material evidence following the May 2017 examination, the May 2017 opinions are afforded no probative value. Turning to the April 2021 opinions, the examiner's opinions regarding the etiology of both the bilateral hearing loss disability and tinnitus are supported by adequate rationales based upon review of the Veteran's medical history and lay statements. The April 2021 examination report indicates consideration of the claims file, including the February 2021 Board remand, March 2017 VA audiological examination, May 2017 VA examination, and STRs and personnel records. Accordingly, the April 2021 opinions are afforded significant probative value. Moreover, given that there is no credible evidence of onset of symptoms of bilateral hearing loss and/or tinnitus within one year of separation from service, no further consideration of whether the Veteran's bilateral hearing loss disability and/or tinnitus manifested to a compensable degree within one year of separation from service is warranted. As noted, above in-service noise exposure is conceded because it is consistent with the MOS, but the Veteran's statements with regard to in-service onset of bilateral hearing loss and tinnitus are not credible because they are inconsistent with other statements made in the course of receiving treatment. Although the Veteran sincerely believes that his bilateral hearing loss and tinnitus are related to service, his opinion in this regard is not competent. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay witnesses may, in some circumstances, competently opine on questions of diagnosis and etiology (such as the onset of an observable symptom such as varicose veins, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24Vet. App.428, 435 (2011). However, in this case, the question of the etiology of the Veteran's bilateral hearing loss and tinnitus falls outside the realm of common knowledge of a lay person, where, as here, the hearing loss and tinnitus are found to have begun years after in-service noise exposure. See Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007). While the Veteran is certainly capable of reporting observable symptoms such as ringing in the ears and a loss of hearing acuity, his statement of in-service onset is contradicted by other self-reported history of post-service onset. Given the finding of post-service onset of hearing loss and tinnitus, any opinion by the Veteran that relates current hearing loss and tinnitus to in-service noise exposure years earlier is not competent. The causation of hearing loss and tinnitus having their onset many years after service discharge is not capable of lay observation, and requires knowledge of complex internal processes identified by a medical professional. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation based on the finding of post-service onset in this case. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, his opinion lacks probative value. In conclusion, because the preponderance of the evidence shows that the Veteran's bilateral hearing loss disability and tinnitus are not related to service, the benefit of the doubt doctrine is not applicable to this case. Accordingly, service connection for a bilateral hearing loss disability and tinnitus are not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.