Citation Nr: 21011234 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-04 666 DATE: March 1, 2021 ORDER Service connection for a bilateral hearing loss disability is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has had tinnitus at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1963 to November 1965. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a bilateral hearing loss disability and tinnitus. In November 2018, VA received the Veteran’s Notice of Disagreement (NOD). In December 2019, the RO issued a Statement of the Case (SOC). In January 2020, VA received the Veteran’s VA Form 9 appeal to the Board. In July 2020 the Board remanded the case for further development and adjudicative action. Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. The Veteran seeks service connection for a bilateral hearing loss disability and tinnitus. The question for the Board is whether the Veteran has current disabilities 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 diagnosis of bilateral sensorineural hearing loss, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Furthermore, the Board concludes that the Veteran does not currently experience tinnitus and has not had tinnitus during the pendency of the appeal. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Historically, when interpreting audiometric data from STRs, Service Departments changed from using American Standards Association (ASA) standards, to using International Standards Organization American National Standards Institute (ISO-ANSI) standards when providing audiograms beginning at some point between approximately January 1, 1967 and December 31, 1970, however, the conversion date was not consistent between all branches of the Armed Forces. Accordingly, if the standard used is not clearly indicated on the Service Department audiogram(s), it is presumed that prior to January 1, 1967 the ASA standard was used. For in-service audiograms conducted between January 1, 1967 and December 31, 1970, where the standard used is unclear, the data under both ASA and ISO-ANSI standards will be considered. For in-service audiograms conducted after December 31, 1970, it is presumed that the ISO-ANSI standard was used. In this case, because the Veteran’s in-service audiograms were conducted prior to January 1, 1967, it is presumed that the ASA standard was used. During service, the Veteran had a military occupational specialty (MOS) of sharpshooter and was assigned to an artillery unit. See DD Form 214 uploaded on September 14, 2018. Therefore, exposure to hazardous noise from ballistic weapons is consistent with the circumstances of his service. Service treatment records (STRs) show that the Veteran was administered an October 1963 audiogram prior to entrance into service. The puretone thresholds (converted to ISO units in parenthesis) are as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 (20) 5 (15) 0 (10) 5 (15) 5 (10) Left 15 (30) 10 (20) 0 (10) 0 (10) 5 (10) In September 1965, the Veteran was administered another audiogram prior to separation from service. The puretone thresholds (converted to ISO units in parenthesis) are as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 (25) 5 (15) 0 (10) N/A 0 (5) Left 5 (20) 0 (10) 0 (10) N/A 0 (5) There is no indication of complaints of hearing loss or tinnitus at separation or at any time prior to the Veteran’s initial claim. However, following service, the Veteran worked as an automobile mechanic and was exposed to noise from power tools at home and work. See October 2020 VA examination report. In October 2018, the Veteran received an initial VA examination for his bilateral hearing loss and claimed tinnitus. The Veteran’s average puretone thresholds were 56 decibels for the right ear and 60 decibels for the left ear. The full puretone thresholds are as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 35 55 65 70 Left 25 35 60 75 70 Speech discrimination scores were 44 percent for the right ear and 30 percent for the left ear. The examiner provided a diagnosis of bilateral sensorineural hearing loss. Further, she indicated that the Veteran reported recurrent tinnitus. Regarding etiology, the examiner concluded that the Veteran’s bilateral hearing loss disability and tinnitus were less likely than caused by or related to military service. She found that the October 1963 and September 1965 signaled “no permanent shift in hearing thresholds beyond test variability.” Moreover, she noted that there were no complaints of hearing loss or tinnitus during service or at separation and that the Veteran had a post-separation history of noise exposure. In the November 2018 NOD, the Veteran’s representative indicated that the Veteran had been “confused” about the October 2018 examiner’s line of questioning regarding tinnitus. Following the July 2020 Board remand, in October 2020, the Veteran received another VA examination performed by the same examiner. The Veteran declined audiometric testing. Furthermore, both the Veteran and his wife confirmed that the Veteran neither currently experienced tinnitus nor experienced tinnitus in the past. During the examination, the examiner verified that the Veteran understood all questions asked and the Veteran answered all questions appropriately. The etiology opinion for the bilateral hearing loss disability largely reproduced the opinion offered in October 2018; however, as the Veteran did not report tinnitus, no opinion was provided regarding etiology for tinnitus. Regarding the probative value of the October 2018 and 2020 VA opinions, both opinions are based on full consideration of the Veteran’s in-service medical history and lay statements about onset of hearing loss symptoms and circumstance of service. Accordingly, the October 2018 and 2020 VA opinions are afforded significant probative value as to nexus as to the Veteran’s bilateral hearing loss disability. Furthermore, as noted above, the Veteran now avers that he has never experienced tinnitus; notwithstanding, even assuming that the Veteran has experienced tinnitus during the period on appeal (given inconsistent evidence on the matter), the October 2018 VA opinion regarding the etiology of tinnitus is afforded significant probative value as it is essentially identical to the opinion provided for the etiology of the bilateral hearing loss disability and is grounded in the same evidence and analysis. (Continued on the next page)   While the Veteran is competent to report lay observable symptoms, such as hearing loss, he is not competent to opine on the etiology of his hearing loss, which involves complex internal processes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Therefore, his opinion lacks probative value. Accordingly, the preponderance of the evidence shows weighs against finding that the Veteran’s bilateral hearing loss disability began during service or is otherwise related to service. Furthermore, the preponderance of the evidence shows weighs against finding that the Veteran has tinnitus which began during service or is otherwise related to service. In conclusion, because the preponderance of the evidence shows that the Veteran’s bilateral hearing loss disability is not related to service and that the Veteran does not currently experience tinnitus that is related to service, the benefit of the doubt doctrine is inapplicable in this case. Accordingly, service connection for bilateral hearing loss and tinnitus is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, 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.