Citation Nr: A21019595 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 200330-80428 DATE: December 8, 2021 ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's hearing loss or tinnitus began during active service or are otherwise related to an in-service injury or disease; the Veteran's tinnitus is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 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, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1965 to February 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal of an August 2019 rating decision of the agency of original jurisdiction (AOJ). In March 2020, the Veteran filed two concurrent VA Forms 10182, Decision Review Request: Board Appeal (Notice of Disagreement), requesting a hearing with a Veterans Law Judge to address all issues identified herein, and indicating that he would like to have the opportunity to submit additional evidence in support of his appeal within 90 days of that hearing. In October 2020, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge. A copy of the transcript is of record. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. To substantiate a claim of secondary service connection, the record must show (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the already service-connected disability caused or aggravated the disability for which service connection is sought. Wallin v. West, 11 Vet. App. 509 (1998). For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserted that his hearing loss was due to his active service. He asserted that his tinnitus was secondary to his bilateral hearing loss. The Veteran's STRs, show that at his August 1965 entrance physical, audiometric testing did not show hearing loss for VA purposes. At an August 1967, medical examination, audiometric testing showed hearing loss at the 3000 hertz and 4000 hertz levels, and he was diagnosed with bilateral high frequency hearing loss. However, by his February 1969 separation physical, audiometric testing once again did not show hearing loss for VA purposes. At his separation physical, he specifically denied having any hearing loss or ear trouble. In February 2019, the Veteran was afforded a VA hearing examination. Audiometric testing showed hearing loss for VA purposes. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran's bilateral hearing loss and tinnitus were not at least as likely as not due to his active service. The examiner reported that there was no evidence of permanent auditory damage during the Veteran's active service. The examiner reported that both his entrance and separation examinations showed normal hearing. The examiner reported that the Veteran showed no significant permanent hearing threshold shift during his active service. The examiner reported that the claims file contained no evidence of complaints or treatment for tinnitus until the time of the claim. The examiner reported that despite military noise exposure, a nexus between auditory damage and hearing loss or tinnitus and the Veteran's active service was not established. It is not disputed that he now has hearing loss for VA purposes. It is also not disputed that the Veteran experienced military noise exposure during his active service in the Air Force. However, military noise exposure alone is not considered to be a disability, rather, when sensorineural hearing loss is first documented more than a year after service separation, it must be shown that the hearing loss was caused by the military noise exposure. The Veteran's claims file shows that he had normal audiometric testing at his entrance physical. While he had temporary hearing loss at an August 1967 audiometric testing, by his February 1969 separation physical, audiometric testing once again showed normal hearing loss. In addition, the Veteran specifically denied having any hearing loss or ear trouble at his separation physical. The first objective evidence of hearing loss is not until February 2019 VA examination. He has not submitted any competent medical evidence supporting his assertion that his bilateral hearing loss is due to his active service. VA obtained a medical opinion in an effort to support the Veteran in establishing his claim. The Board finds the greatest probative value in the February 2019 VA examiner's opinion. Notably, the Veteran has not submitted any competent evidence, beyond his own assertions, supporting his claim that his bilateral hearing loss was due to his active service, to include military noise exposure Consideration has been given to the Veteran's assertion that his bilateral hearing loss was due to his active 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, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report difficulty hearing, he has not been 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 has received any special training or acquired any medical expertise in evaluating audiological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value in the determination of the etiology of the Veteran's bilateral hearing loss. As the preponderance of the evidence is against finding a nexus between the Veteran's active service and his current hearing loss, the criteria for service connection are met, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding tinnitus, the AOJ found a current tinnitus diagnosis, linked to hearing loss, as favorable findings published in the August 2019 rating decision on appeal. However, as hearing loss is not service connected, secondary service connection cannot be granted. Id. Where a claim for secondary service connection fails, the claim may still be evaluated for direct service connection. However, as above, this claim fails the criteria for direct service connection because the record does not reflect attribution to service. The claims file does not contain any personal statements, treatment records, or witness statements reporting buzzing sounds, ringing in the ears, or any other tinnitus symptoms, and then for any link attributing those symptoms directly to service. There was no such evidence on record. (Continued on the next page) As the preponderance of the evidence is against finding the Veteran's tinnitus has any nexus to service, and that his hearing loss, causing the tinnitus, is not service connected, the criteria for service connection are met, the benefit-of-the-doubt rule does not apply, and this claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.