Citation Nr: 21010751 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-03 394A DATE: February 25, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran had active duty from April 1964 to March 1967. 2. Bilateral hearing loss was not shown in service, not shown to a compensable degree within one year of service, symptoms not continuous since service, and hearing loss is not causally or etiologically related to service. 3. Tinnitus has been continuous since service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. Tinnitus is presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in January 2021. A copy of the transcript has been associated with the claims file. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss and tinnitus are recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, hearing loss and tinnitus were noted in a November 2015 VA examination. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. Test results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 55 60 60 LEFT 25 30 65 65 65 Therefore, hearing loss is currently shown. Further, the Veteran reported tinnitus. Reports of his symptoms are also well-documented throughout VA treatment records. Thus, the first element of service connection – a current diagnosis – has been met. Next, the evidence supports a finding of in-service acoustic trauma. Specifically, in a November 2015 VA examination, the Veteran reported using weapons, heavy equipment, diesel engines, and lawn equipment in service. Further, in the February 2019 appeal to the Board, he stated that he was exposed to weapons fire and artillery cannon noise during basic training. Personnel records reflect that his military occupational specialty (MOS) was engineer equipment repairman. Service treatment records (STRs) do not document complaints, diagnoses, or treatment for hearing loss or tinnitus. Specifically, the Veteran did not report hearing loss at separation. Nonetheless, as described above, he has asserted noise exposure from using weapons and heavy artillery equipment in service. Based on this evidence, in-service noise exposure is established. Further, the Veteran’s statements are consistent with the nature of his service, during which he served as an engineer equipment repairman and his history of service noise exposure is documented throughout VA treatment records. In addition, there is no evidence of record which tends to contradict his testimony. As such, the second element of service connection has been met. As to nexus, in a November 2015 VA examination, the examiner stated that she could not determine the etiology of hearing loss without resorting to speculation. Specifically, she noted that while audiological testing at separation indicated hearing was normal at low frequencies, results were illegible for middle and high frequencies. Therefore, she explained that given that the Veteran reported both occupational and in-service noise exposure, she was unable to opine as to whether hearing loss was incurred in service. There is no contradictory medical opinion. Based on the above, the medical evidence does not support the claim that hearing loss was directly incurred in service. Although the Veteran asserted in-service noise exposure from his MOS as an engineer equipment repairman, he did not report hearing loss in service. Further, the November 2015 VA examiner did not find that bilateral hearing loss was directly incurred in service. Therefore, the medical evidence does not support the claim of direct service connection. Also tending to weigh against a nexus between hearing loss and service are the Veteran’s testimony that hearing loss began ten years prior, dating the onset to approximately 2011. This is consistent with the medical evidence reflecting that he did not report symptoms of hearing loss until 2015. As he did not report hearing loss since service, and the absence of a medical nexus, the evidence does not support direct service connection. Turning to the one-year presumption, bilateral hearing loss did not manifest to a compensable degree within one year of separation from service. In a November 2015 VA examination, the examiner diagnosed bilateral sensorineural hearing loss, but reported no history of prior ear pathology. As the Veteran separated from service in 1967, this is well outside the one-year legal presumption for certain chronic diseases such as hearing loss. Next, the record does not establish continuity of symptomatology under 38 C.F.R. § 3.309(a). Importantly, as noted, at the hearing, the Veteran reported hearing loss beginning ten years prior, this dates the onset to approximately 2011. This is consistent with the medical evidence which shows documentation of hearing loss beginning in 2015. In light of the above, the medical evidence does not support service connection for bilateral hearing loss based on continuity of symptomatology. In sum, the medical evidence weighs against the claim for service connection for hearing loss on a presumptive basis. As to continuity of symptomatology for tinnitus, unlike hearing loss with an onset reported in approximately 2011, the Veteran indicated that he had experienced ringing in his ears since separation from service. While there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The Board notes that in a November 2015 VA examination, the examiner could not determine whether tinnitus was incurred in service without resorting to speculation; however, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease of tinnitus (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of tinnitus since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of tinnitus since service; therefore, tinnitus is presumed to have been incurred in service. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since service separation, all other service connection theories are rendered moot. The Board has considered the Veteran’s lay statements and testimony that hearing loss was incurred in service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for hearing loss and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.