Citation Nr: 21069490 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-28 578 DATE: November 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Bilateral hearing loss for VA purposes was not shown in service or many years thereafter; and the preponderance of the evidence is against finding that bilateral hearing loss for VA purposes is etiologically related to active service. 2. Tinnitus was not shown in service or many years thereafter; and the preponderance of the evidence is against finding that tinnitus is etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from January 1966 to December 1967. The appeal originates from a May 2014 decision of a Department of Veterans Affairs (VA) Regional Office. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, such as organic diseases of the nervous system (including hearing loss and tinnitus), will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran contends that he developed hearing loss and tinnitus in service due to noise exposure from weapons, construction equipment, vehicles, and other sources. See July 2021 Appellate Brief. The May 2014 VA examination reflects a diagnosis of bilateral sensorineural hearing loss meeting the threshold requirements for hearing loss for VA purposes. The Veteran's complaint of recurrent tinnitus was also noted. Element (1) of Shedden is met. Service treatment records are silent for complaints, treatment, or diagnosis of hearing loss or tinnitus. The ears were evaluated as normal on examination proximate to separation in October 1967, and the Veteran offered no history of hearing loss or tinnitus on a contemporaneous report of medical history. While he did indicate ear, nose, or throat trouble, the evaluator clarified that there was "[n]o recent ENT difficulty." Nevertheless, as his DD-214 indicates a military occupational specialty of carpenter, in-service noise exposure from sources like weapons and construction equipment is conceded. Such is sufficient to meet Shedden element (2) with respect to in-service noise exposure. Regarding Shedden element (3) or a nexus, the March 2018 examiner opined that bilateral hearing loss and tinnitus are less likely as not related to service, including the Veteran's work as a carpenter. The examiner determined that there was no significant shift in hearing thresholds from enlistment to separation; rather, these shifts were not shown until approximately four decades after service. The examiner acknowledged in-service hazardous noise exposure but found no objective evidence of permanent auditory damage on active duty, including any report of hearing decrease or tinnitus at separation. The examiner explained that while there is a well-established relationship between hazardous noise, auditory damage, and hearing loss and tinnitus, it is not noise exposure alone, but also medical evidence of a nexus, that links them. The examiner determined the objective evidence was against finding a medical nexus in this case. The Board notes the October 2017 private opinion from a physician regarding the Veteran's hearing loss. The opinion merely states that the Veteran disclosed "a history of noise exposure which may have contributed to his hearing loss." It is unclear whether in-service noise exposure is being referenced in the opinion. Moreover, the opinion is speculative and does not appear to be the physician's own words but rather a recitation of the Veteran's argument. Accordingly, the opinion is afforded no weight. Consideration has been given to presumptive service connection and continuity of symptomatology. The Veteran contends that his hearing loss and tinnitus developed in service and have been continuous since. However, on review of the record, the Board finds that he is not a credible historian of his symptomology. First, as noted, he denied having these symptoms at separation. Second, he is shown to have denied symptoms of hearing loss and tinnitus for many decades thereafter. Indeed, at the May 2014 examination, he conceded that the onset of his hearing loss occurred gradually over the preceding 10 years (circa 2004) and that tinnitus had its onset in the past 15 to 20 years (circa 1994). Such is consistent with objective evidence tending to show that hearing loss and tinnitus did not manifest until decades after service. Neither the Veteran or his representative has reconciled this inconsistent reported history. Further, while he asserts that his daughter and spouse complained of him having longstanding hearing loss and tinnitus, there are no statements of record from these individuals for the Board to review. See August 2014 NOD. Consideration is given to arguments raised by the Veteran. He challenges the adequacy of the March 2018 VA opinion, contending that lay reporting of noise exposure establishes a causal link to service. See July 2021 Appellate Brief. However, this is incorrect as the examiner acknowledged the in-service noise exposure but explained that this is not equivalent to auditory damage and hearing loss and tinnitus. The Veteran argues that the examiner did not consider a theory of delayed reporting of hearing loss and tinnitus. This misconstrues the opinion, which discusses his symptom history and the factors weighing against a link to service, including the absence of in-service reports of hearing loss and tinnitus, no significant threshold shifts until decades later, and a lack of medical evidence supporting a nexus. As the evidence is not in relative equipoise, the benefit-of-the-doubt doctrine is not applicable here. The Board has also considered the Veteran's personal assertions that his hearing loss and tinnitus are due to in-service noise exposure. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The disabilities at issue are not readily amenable to probative lay comment regarding etiology. The Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating his disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). As such, the lay evidence does not constitute competent medical evidence and lacks probative value. The lay opinion is also outweighed by the March 2018 VA opinion. Accordingly, the claims of service connection for bilateral hearing loss and tinnitus must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.