Citation Nr: 21077522 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 16-09 637 DATE: December 30, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for cervical spine disability as secondary to service-connected disability is denied. FINDINGS OF FACT 1. At no time during, or prior to, the pendency of the claim does the Veteran have a current diagnosis of a right ear hearing loss for VA purposes. 2. The preponderance of the evidence is against finding that the Veteran has a left ear hearing loss disability due to an in-service disease, injury, or event. 3. The preponderance of the evidence is against finding that the Veteran has tinnitus due to an in-service disease, injury, or event. 4. The preponderance of the evidence is against finding that a cervical spine disability is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for cervical spine disability as secondary to service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) RO. In June 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In December 2019, these matters, along with additional issues, were remanded for further development. The Board observes that the other issues have been granted service connection and are no longer before the Board. See May 2021 and July 2021 rating decisions. Service connection Service connection may be granted 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may be established by a showing that a nonservice-connected disability is caused or aggravated (chronically worsened) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). For the 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, 1000, 2000, 3000, 4000 Hertz is 40 decibels 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran testified that his bilateral hearing loss is a result of his active duty. He indicates that although his military occupation was a clerical position, his Unit was still around noisy aircraft. The service treatment records (STRs) show no complaints of or treatment for bilateral hearing loss. In-service audiograms dated in July 1986 and March 1988 show no bilateral hearing loss disability as per VA compensation purposes. Further, no bilateral hearing loss was shown on April 1992 service separation examination. Post-service VA treatment records dated in 2016 show the Veteran was issued hearing aids. On the authorized audiological evaluation in December 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 15 35 35 LEFT 35 30 25 45 50 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 in the left ear. The examiner noted that the Veteran's bilateral ear disability is not at least as likely as not caused by or result of military service. The examiner indicated that the Veteran had a military occupational specialty (MOS) with moderate probability for hazardous noise exposure and he had no standard threshold shifts in hearing. In addition, the Veteran had no badges or awards that would lead to the conclusion that he was around hazardous noise. These facts do not support an award of service connection for bilateral hearing loss. There is no indication that the Veteran manifested a hearing loss disability in either ear during active duty. Moreover, the left ear hearing loss disability did not manifest until several years post-service and was not found to be due to an in-service illness, injury, or event. Indeed, the examiner indicated that there is no indication that the Veteran's MOS exposed him to hazardous noise. Further, as the United States Court of Appeals for Veterans Claims (Court) pointed out in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), a hearing loss is not synonymous with a hearing disability for VA purposes. There is no evidence showing the presence of a right ear hearing loss disability for VA purposes during the appeal period. Absent evidence of the claimed disability, a basis upon which to award service connection is not shown. The Board has considered the Veteran's lay assertions as to the etiology of his bilateral hearing loss. Although the Veteran is competent to attest to his experiences, he is not competent in these circumstances to opine as to the medical etiology of his bilateral hearing loss, as he lacks medical expertise. The Board finds the December 2020 VA examination report to be more probative in this regard, as they are based on contemporaneous statements and events. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The preponderance of the evidence weighs against the Veteran's claim for service connection for bilateral hearing loss. The benefit-of-the-doubt doctrine therefore does not apply, and the Veteran's claim must be denied. 2. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus disability is due to his military service. After consideration of all the evidence, the claim must be denied because the preponderance of the evidence is against a finding that the Veteran has tinnitus that is related to his service. The Veteran's STRs show no complaints of or treatment for tinnitus. In addition, review of the record shows that the initial, post-service documentation of tinnitus was not until 2016, as documented in VA treatment records. Further during the December 2020 VA examination, the examiner noted that the Veteran's tinnitus is less likely caused by or a result of military noise exposure. The examiner indicated that although the Veteran's MOS had a moderate probability for hazardous noise exposure, he had no standard threshold shifts in hearing. In addition, he had no badges or awards that would help further concede noise exposure. The examiner stated that there is no record in which the Veteran reported tinnitus while in service. The examiner noted that the Veteran's tinnitus is a symptom of his bilateral hearing loss. Although the Veteran believes his tinnitus is related to in-service noise exposure, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical education. Therefore, it is outside the competence of the Veteran because the record does not show that he has the medical training or credentials to make such a determination. Consequently, the Board gives more probative weight to the December 2020 VA medical opinion of record. Although disabilities of the nervous system, including tinnitus, are subject to presumptive service connection; service connection would not be warranted unless the tinnitus manifested to a compensable degree within a year of the Veteran's release from active service in July 1992, or if he exhibited a continuity of symptomatology since that time. In this case, there is no probative evidence of tinnitus manifested to a compensable degree within one year from discharge, nor is there a showing of a continuity of symptomatology, as the record contains the onset of his tinnitus did not begin until several years after service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not applicable, and the Board must deny the claim for service connection for tinnitus. 3. Entitlement to service connection for cervical spine disability as secondary to service-connected disability The Veteran asserts that his cervical spine disability is due to his service-connected left clavicle disability. The Veteran's STRs show no complaints of or treatment for a cervical spine disability. As noted, his theory of entitlement is of secondary service connection. The record shows that the Veteran has been diagnosed with a cervical spine disability during the appeal period. See January 2016 VA examination report. Therefore, the Board finds that the Veteran currently has a cervical spine disability. The Board also observes that service connection is currently granted for residuals of a left clavicle fracture. See February 2012 rating decision. During January 2016 VA examination, the examiner indicated that the Veteran's neck disability is less likely than not proximately due to or the result of his service-connected disability. The examiner noted that a review of the STRs does not reveal the Veteran ever being seen, while on active duty, with complaints of neck pain. There is mention of a vehicular accident with a resultant broken collar bone in May 1988, but on a physical dated September 1988 and again in April 1992 he failed to declare that he had problems with his spine. During a November 2020 VA examination, the examiner indicated that the Veteran's cervical spine disability is less likely than not proximately due to or the result of a service-connected disability. He indicated that the Veteran's cervical spine disability is related to chronic wear and tear of the cervical disc. Further, upon review of the Veteran's file, the left clavicle healed without evidence of malunion and does not support aggravation of the cervical spine degenerative disc disease (DDD) beyond natural progression. The examiner indicated that the Veteran's Osgood Schlatter's disease is a separate entity entirely and unrelated to the cervical DDD. The Board finds that the November 2020 VA examiner's opinion is the most probative evidence of record as to the etiology of the cervical spine disability. The examiner's opinion is plainly supported by the evidence of record. Indeed, the examiner indicates the cervical spine disability is not shown in the treatment records to be due to service or secondary to his service-connected left clavicle disability. The examiner indicates that the cervical spine disability is due to chronic wear and tear of the cervical disc and is independent of his clavicle disability. Further, the Veteran's Osgood Schlatter's disease is a separate entity entirely and unrelated to the cervical DDD. Although the Veteran believes his cervical spine disability is related to his service-connected clavicle disability, the Board reiterates that the preponderance of the evidence weighs against findings that the current cervical spine disability is secondary to his service-connected left clavicle disability. Further, he is not competent to opine that his current cervical spine disability was secondary to a service-connected disability. He has not been shown to have the requisite expertise to opine on a complex medical matter. As such, his statements to that effect are afforded little probative value. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not applicable, and the Board must deny the claim for service connection for cervical spine disability. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.