Citation Nr: 21075052 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-26 300 DATE: December 17, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a lung condition is denied. REMANDED Entitlement to service connection of a back injury is remanded. FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran's tinnitus had its onset during service and has continued since. 2. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that a lung condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a lung condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested and was scheduled for an October 2021 Board hearing. However, in October 2021, he withdrew the hearing request. Accordingly, the Board considers the hearing request withdrawn. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and tinnitus or hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus began during service and has continued since. See April 2016 VA examination. Initially, the Veteran is currently diagnosed with tinnitus. Id. His assertion of exposure to loud noise is consistent with the circumstances of his service. See 38 U.S.C. § 1154(a). When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds the Veteran's assertions that tinnitus began during service and has continued since then to be credible. The Board acknowledges that the April 2016 VA examiner opined that the Veteran's tinnitus was less likely than not caused by military noise exposure. However, upon review of the record and after resolving all doubt in favor of the Veteran, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's tinnitus arose in service. For the above reasons and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss is related to his in-service noise exposure to jet aircraft as a Paratrooper. See April 2016 VA examination. After careful review of the evidence, the Board concludes that while the Veteran has a current diagnosis of bilateral hearing loss, and evidence shows that in-service noise exposure occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. The Veteran has a current diagnosis of bilateral hearing loss as evidenced by the April 2016 VA examination. However, there is no evidence in the Veteran's service treatment records of hearing loss in service, nor is there any evidence that such hearing loss manifested to a compensable degree, or even evidence of a hearing threshold shift within one year of separation from active service. In short, the records do not show, nor has the Veteran contended, that his hearing loss had its onset during service or within one year after his separation from service. As such, service connection on a presumptive basis is not supported, and the question before the Board is that of a nexus between his in-service noise exposure and post-service hearing loss which was diagnosed many years after separation. VA records show the Veteran was not diagnosed with bilateral hearing loss until April 2016, decades after his separation from service. In April 2016, the Veteran was afforded a VA examination in connection with his claim, following a complete review of the medical record and the Veteran's occupational and medical history, the examiner opined that the Veteran's bilateral hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure. The rationale was that there is no evidence of hearing loss during service, and he had positive recreational and occupational noise exposure after his separation from service because he hunted, worked in the landscaping business for 20 years, and then worked as a wastewater plant operator for 16 years with the use of hearing protection devices. The VA examiner further opined that the Veteran's bilateral hearing loss is not delayed on-set hearing loss because there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no opinion or medical evidence of record to contradict this medical opinion. The Board does recognize the Veteran's firmly held belief that his present hearing loss is related to active duty noise exposure, but finds this of limited probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his hearing loss, especially in light of the VA audiologist's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of bilateral hearing loss in service. See id. In sum, there is no competent evidence of record establishing that the Veteran's bilateral hearing loss had its onset during service or is otherwise related to his service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran's claim, and service connection for bilateral hearing loss is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a lung condition The Veteran contends that his current lung condition is related to his service, to include his in-service diagnosis of bronchitis. 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 restrictive lung disease, and evidence shows that in-service bronchitis occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of restrictive lung disease began during service or is otherwise related to an in-service injury, event, or disease. VA records show the Veteran was not diagnosed with restrictive lung disease until May 2016, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of chronic coughs and shortness of breath since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of restrictive lung disease. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, in June 2016, the Veteran was afforded a VA examination in connection with this claim. At that time, the examiner opined that the Veteran's restrictive lung disease is not at least as likely as not related to an in-service injury, event, or disease, including his in-service bronchitis. The rationale was: Veteran was treated for bronchitis in March 1966, with antibiotics tetracycline. He did not require any prolong treatment in service. After leaving service, he is complaining of chronic coughs and shortness of breath occurring with prolong activities. He is not on treatment currently. He is current a smoker. Current condition with restrictive lung disease is less likely related to military service. The bronchitis that was successfully treated in service, and there was no evidence of chronic respiratory residuals from that. He did not require any chronic treatment in service. Current respiratory condition is at least likely related to smoking and obesity. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has searched the record but finds no medical evidence or opinions to contradict the conclusions of the 2016 VA examiner. The Board does recognize the Veteran's firmly held belief that his present lung condition is related to his in-service treatment for bronchitis, but finds this of limited probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau, supra. In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his lung condition, especially in light of the VA examiner's conclusions to the contrary which considered the complete medical record, to include the Veteran's own lay assertions of continuing symptoms from the time of service, as well as the fact that the Veteran was not diagnosed with restrictive lung disease until many years following active service. See id. In sum, there is no competent evidence of record establishing that the Veteran's restrictive lung disease had its onset during service or is otherwise related to his service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran's claim, and service connection for a lung condition is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. 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). REASONS FOR REMAND 1. Entitlement to service connection for back injury is remanded. The Veteran is seeking entitlement to service connection for a back injury. The Board finds that additional development is needed prior to adjudication of this claim because the Veteran reported a back issue on his entrance examination. See December 1965 STR (the Veteran noted that sitting in certain positions caused his back to tighten up and hurt). Upon review of the record, the Board finds that a VA examination would aid in addressing these claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his appeal. 2. Schedule the Veteran for a VA examination to address the claim for a back injury. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, for each identified spine disability (it is noted that pain alone may constitute a disability if functional loss is found) the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's disability is related to any incident of active service, to include his work as a parachutist. If the disability identified is arthritis in nature, the examiner should state whether is it at least as likely as not that the disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Additionally, the examiner is requested to address the report on the Veteran's entrance examination of his back tightening and hurting after sitting in certain positions. In this regard, the examiner should state whether the disability clearly and unmistakably (undebatable) preexist the Veteran's service? If the examiner finds the disability did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? A rationale should accompany all opinions given. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.