Citation Nr: A21019403 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 191113-82658 DATE: December 6, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's hearing loss is not etiologically related to his active service. 2. The Veteran's tinnitus is not etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a hearing loss disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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. §§ 1101, 1110, 1112, 1113, 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 May 1960 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) from an October 2019 rating decision from a Department of Veterans Affairs (VA) regional office (RO). In the October 2019 rating decision, the RO denied service connection for hearing loss and tinnitus. 38 C.F.R. §§ 3.2400(a)(1), 19.2(b). In November 2019, the Veteran appealed the denials to the Board and requested a hearing before a Veterans Law Judge (VLJ). 38 C.F.R. §§ 3.2500(a)(1)(ii), 20.202, 20.203. The Veteran testified at a hearing before the undersigned acting VLJ in December 2020, and a transcript of that hearing is of record. As the Veteran requested a hearing, the Board will base its decision on the evidence of record at the time of the rating decision on appeal as well as all evidence received from the Veteran either at the hearing or within 90-days after the hearing. 38 C.F.R. §§ 20.300, 20.302. Service Connection Generally, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases 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, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Generally, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Continuity of symptomatology is only applicable to those diseases recognized as chronic for VA purposes. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). 1. Service connection for bilateral hearing loss and tinnitus. As the facts and analysis for both the hearing loss and tinnitus claims are substantially the same, the Board will address them together for the purposes of brevity. The October 2019 rating decision included the favorable findings that the Veteran has a current hearing loss disability that meets the requirements of 38 C.F.R. § 3.385, has a diagnosis of tinnitus, and that the Veteran had noise exposure during his active service. The remaining issue is whether there is a nexus, or causal relationship, between the noise exposure in service and the current hearing loss disability and tinnitus. While the Veteran has asserted that both his hearing loss and tinnitus are causally related to his noise exposure in service, he is not competent to provide such an opinion as to do so requires medical knowledge and training beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, the Veteran's assertions of a direct causal relationship between his hearing loss and tinnitus and his in-service noise exposure are entitled to no probative weight. The Board further notes that during his December 2020 testimony the Veteran indicated that his hearing loss and tinnitus had their onset in service and had been continuous since. The Veteran is competent to report lay observable symptoms such as decreased hearing acuity and tinnitus. Jandreau, 492 F.3d 1372. However, these assertions conflict with other evidence of record. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, the Veteran specifically denied any current or history of ear, nose, or throat trouble on his December 1963 separation report of medical history. A September 2009 VA treatment record reflects that the Veteran denied a history of hearing loss, although he was noted to have hearing loss at the time. Finally, the September 2019 VA examiner noted that at the time of the examination the Veteran stated that he first noted hearing loss and tinnitus at around the age of sixty-five. As the Veteran's statements concerning persistent symptoms since service are directly contradicted by other statements of record, the Board finds that these assertions are not credible and therefore entitled to no probative weight. Id. VA obtained a medical opinion concerning the etiology of the Veteran's hearing loss and tinnitus in September 2019. The examiner stated that it was less likely than not that the hearing loss or tinnitus were causally related to the Veteran's in-service noise exposure. Concerning hearing loss, in support of the opinion the examiner noted that the Veteran reported that he first noticed his hearing loss at the age of sixty-five, and that post-service records did not show treatment for hearing loss until age sixty-five. Further, the examiner noted that the Veteran reported a 22 year history of occupational noise exposure at a steel mill following his separation from service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 29394 (2012). With regards to tinnitus, the examiner noted simply that the Veteran did not report an on-set of tinnitus until he was sixty-five, which was decades after his separation and noise exposure. See Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 29394. There is no evidence that the September 2019 examiner was not competent or credible, and further the opinions were supported by direct citations to the evidence of record and considered the Veteran's in-service noise exposure. As such, the Board finds that the opinions are entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Post-service treatment records are silent for notations of hearing loss until September 2009. Records prior to September 2009 generally reflect that the Veteran did not report any issues with his hearing or ears during appointments. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran's hearing loss or tinnitus are causally related to service. The only competent and credible evidence of record is the September 2019 examiner's opinion, which was based on consideration of the Veteran's statements and medical evidence. Therefore, the preponderance of the evidence is against finding a nexus between the in-service noise exposure and current hearing loss disability and tinnitus. Therefore, service connection is not warranted for either disability on a direct basis. Both sensorineural hearing loss and tinnitus are considered chronic diseases for VA purposes. 38 C.F.R. § 3.309(a). However, there is no competent and credible evidence showing that either disability manifested to a compensable level within one year of the Veteran's separation from service or that the disabilities have been continuous since service. The Veteran's December 1963 separation examination was normal, and he denied any issues with his ears on the corresponding report of medical history. The Veteran further stated at the September 2019 examination that both disabilities did not have their onset until he was sixty-five, which was decades after his separation from service. Therefore, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology is not warranted for hearing loss or tinnitus. 38 C.F.R. §§ 3.303(b), 3.307(a)(3). The preponderance of the evidence weighs against a finding that the Veteran's bilateral hearing loss or tinnitus are causally related to his service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, 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.