Citation Nr: 21065734 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-44 126 DATE: October 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran was not shown to have hearing loss in either ear within a year of discharge from service and his current bilateral hearing loss is not related to service. 2. The Veteran's current tinnitus is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. 1. Entitlement to service connection for bilateral hearing loss disability. The Veteran submitted a claim for service connection for bilateral hearing loss and tinnitus in March 2017. At his July 2021 hearing the Veteran asserted that his hearing loss was caused by his exposure to loud noise in service. He reported exposure to the noise of big guns on his artillery base. He also reported that he was a paratrooper and that he had loud noise exposure jumping from C141 jets. To establish service connection a Veteran must generally 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." 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); see Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Service connection may also 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; 38 C.F.R. §§ 3.307, 3.309(a). For sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, the diseases must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). In this case, the Veteran was not diagnosed with hearing loss disability in either ear within one year of separation from service. There is no competent evidence of record documenting the presence of hearing loss to a compensable degree within one year of discharge. As such, entitlement to service connection for bilateral hearing loss disability on a presumptive basis is not warranted. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000 or 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's service treatment records (STRs) do not contain any complaints of hearing loss. The STRs contain two audiometric examination reports, one for entry into service and one for separation from service. They both revealed the Veteran to have normal hearing acuity. The STRs include a Report of Medical History (RMH) filled out by the Veteran in January 1971, just prior to his discharge from service. The Veteran indicated on this form that he did not have, and that he had never had, hearing loss. The earliest reference to hearing loss is a November 2012 VA treatment record in which the Veteran reported hearing loss. VA audiology consult in December 2012 noted bilateral hearing loss. In May 2017, a fee VA fee basis audiologist verified that the Veteran has hearing loss disability in both ears. He opined that the Veteran's hearing loss disability is less likely than not related to service. He noted that the Veteran's hearing acuity on separation from service evidenced no hearing loss and that there was no decrease in threshold measures (hearing acuity) in either ear when compared to the enlistment audio evaluations. The Veteran submitted an August 2017 statement from his VA treating physician. The staff physician reported that the Veteran was in the military in the artillery 82nd Airborne Division. He stated that the Veteran was exposed to loud explosions constantly. It was his medical opinion that the Veteran's chronic hearing loss is likely related to his military service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran has a current bilateral hearing loss disability that is a result of noise exposure during service, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Rather, it requires specialized knowledge of medical principles relating to the auditory system. The Veteran indicated at his hearing that he had had hearing loss ever since service. The Board does not find such to be credible as the Veteran denied hearing loss on separation from service. Furthermore, he did not complain of hearing loss until 40 years after discharge from service. The Board does not find the August 2017 VA staff physician opinion to be as probative as the May 2017 VA fee basis audiologist opinion. The August 2017 VA staff physician did not indicate full knowledge of the Veteran's audiological history and did not provide a supporting rationale. He did not note that the Veteran had normal hearing acuity at separation from service or that there was no increase in auditory thresholds during service. Unlike the VA staff physician, the audiologist showed a thorough knowledge of the Veteran's audiological history, such as the fact that the Veteran had normal hearing on audiological testing for discharge from service and that the Veteran did not have a threshold shift in his hearing acuity during service. Accordingly, the Board finds that the May 2017 negative opinion of the VA fee basis audiologist is the most probative evidence of record. As shown above, the greater weight of the evidence, and the most probative evidence, shows that the Veteran's current hearing loss disability is unrelated to service. As the preponderance of the evidence is against the claim, service connection for bilateral hearing loss disability is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for tinnitus. The Veteran contends that he is entitled to service connection for tinnitus. At his hearing the Veteran reported that he initially experienced tinnitus in service. In this case, the Veteran was not diagnosed with tinnitus within one year of separation from service. As such, entitlement to service connection for tinnitus on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). The Board notes that the evidence of record establishes current tinnitus. Tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran reported to the May 2017 VA fee basis audiologist that he was unsure as to when he first noticed tinnitus. The audiologist opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The audiologist noted that there were no documented reports that the Veteran experienced the sensation of tinnitus while on active duty. He further noted that the Veteran did not have hearing loss disability in either ear on service separation testing and that there was no shift in threshold measures (hearing acuity) in either ear between pre-enlistment and the separation audiometric evaluations. With regard to the Veteran's testimony indicating that he had had tinnitus ever since service, the Board does not find such to be credible. His testimony is contradicted by his May 2017 report to the audiologist that he did not remember when his tinnitus first began. Furthermore, the STR's show no complaints of tinnitus and on discharge examination the Veteran denied ever having any ear trouble. Furthermore, VA treatment records show that the Veteran first reported tinnitus in December 2012 more than 40 years after discharge from service. (Continued on the next page) Based on the above, the Board finds that there is no medical evidence relating the Veteran's current tinnitus to service, and there is probative medical evidence, the May 2017 VA fee basis audiology opinion, indicating that the Veteran's tinnitus is not related to service. The most probative evidence indicates that the Veteran's current tinnitus is unrelated to service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim and that service connection for tinnitus is not warranted. Gilbert v. Derwinski. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.