Citation Nr: 21013463 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-54 669 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss did not have its onset in service, did not manifest to a compensable degree within one year of separation from service, and is not etiologically related to any incident of his active service. 2. The Veteran has tinnitus that had its onset during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1967. These matters come to the Board of Veterans’ Appeals (Board) on appeal from March 2016 and April 2016 rating decisions. This case was before the Board in July 2019 and August 2020. It was remanded to the agency of original jurisdiction for additional development. Review of the completed development related to the Board’s remands reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 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. Bilateral hearing loss The Veteran contends that his hearing loss is related to exposure to noise during service. The evidence establishes that the Veteran has a bilateral hearing loss disability by VA standards. See 38 C.F.R. § 3.385; February 2016 VA Audiology Examination. In addition, his DD Form 214 reflects that he served as a field radio mechanic. He has reported exposure to cannon explosions during service. The Board finds the Veteran’s reports of in-service exposure to acoustic trauma to be credible. As such, the first two criteria necessary to establish service connection are met. With regard to whether the Veteran’s current hearing loss disability is due to his period of active service, the Board will consider whether service connection is warranted on a presumptive basis. Unfortunately, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has had a hearing loss disability that manifested during service or manifested to a compensable degree within a year of separation from active duty. The Veteran was not noted to have a hearing loss disability for VA purposes at separation from service. See 38 C.F.R. § 3.385; see Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Further, the Veteran specifically denied ear trouble in a Report of Medical History completed prior to separation from service in 1967. The Board notes that the Veteran was discharged in 1967 and the evidence associated with the claims file does not document a diagnosis of a hearing loss disability for VA purposes until decades after separation from service. The Veteran also did not report onset of hearing loss until the 1990’s more than 20 years after separation from service during his February 2016 VA examination. This provides probative evidence that the Veteran did not have continuous symptoms of a hearing loss disability from within a year of separation from service until his current claim for service connection. As the evidence does not support that the Veteran has had a hearing loss disability during service or since within a year of separation from service, service connection for hearing loss on a presumptive basis is denied. 38 C.F.R. §§ 3.307, 3.309. Even where service connection cannot be presumed, however, service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Even though the disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley, 5 Vet. App. at 159. Unfortunately, the Board finds that the evidence of record does not support a link between the Veteran’s current hearing loss and his in-service exposure to acoustic trauma. The Veteran underwent a hearing loss examination January 2020. The Board finds probative the opinion provided by the VA audiologist that opined that the Veteran’s current hearing loss was less likely than not caused by or related to his in-service noise exposure. The VA examiner issued an addendum opinion, which, in pertinent part, states the following: In the scenario in which both 1965 and 1967 exams are taken at face value…test results differences at 4000Hz…are insignificant and are more likely than not related to retest reliability, which allows for differences of +/-5dB from one test to the next…. In the scenario in which 1965 is converted to ISO values on the assumption that values recorded were ASA while 1967 is assumed to be recorded in ISO values and no conversion made for this test, there are no frequencies which show a difference in values greater than +5dBB. In fact, in this assumption scenario, thresholds reflect improvement from induction to separation. Again, in this scenario, it is opined that the Veteran’s hearing did not show a significant shift/worsening of hearing, and would, therefore be opined less likely than not that current hearing loss or tinnitus is attributed to military noise exposure. In the third scenario, in which 1965 is assumed to have been recorded to ISO with no conversions made, while 1967 is assumed to have been recorded as ASA with a conversion made to ISO values, the resultant shifts in hearing are across all frequencies. However, the pattern of hearing in the converted 1967 values is inconsistent with noise exposure as the lower frequencies are again the frequencies which reflect the changes rather than 4kHs. Based again on the description of hearing loss due to noise exposure…this pattern does not warrant medically significant pattern to be considered noise-related. [sic]. Therefore, despite the assumed shift in hearing in this scenario, it would again be opined that the [V]eteran’s hearing loss or tinnitus is less likely than not (less than 50% probability) caused by or a result of military noise exposure. Given all scenarios and rationales as described above, overall, it is again opined by this examiner that the data does not support shifts in hearing during military service as the onset of the [V]eteran’s current hearing loss. Also, the [V]eteran’s pattern of hearing loss progression from 2010 (Dr. R’s exam) to 2013 (L. Hearing Aid Center) to the most recent exam by this examiner in January 2020 is indicative of a hearing loss progression too rapid to be associated with noise exposure. The most recent pattern of hearing loss is flat in nature, which also is inconsistent with noise exposure. Therefore, final opinion given all the aforementioned points is that the [V]eteran’s current hearing loss and tinnitus are less likely than not (less than 50% probability) caused by or related to military noise exposure. September 2020 medical opinion by C.L.L. The Board finds the opinion provided by the September 2020 examiner to be of high probative value. The September 2020 opinion represents the conclusions of a medical professional specializing in hearing conditions, is based on the Veteran's medical history, and is supported by a clear explanation sufficient for the Board to make an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. The opinion specifically discusses the Veteran’s history of hearing loss based upon his service treatment records and considers them under each relevant ASA or ISO conversion. As such, the Board finds the opinion to be probative evidence against the Veteran’s claim for service connection for hearing loss. The Board notes that the Veteran has not submitted competent evidence contradicting the opinion of the September 2020 examiner. Further, the Veteran has not provided any competent evidence of a link between the Veteran's current hearing loss disability and his period of service. To the extent that the Veteran has provided an opinion regarding a nexus between his current hearing loss and his active service, the Board finds that the Veteran is not competent to provide an opinion of a causal relationship between in-service noise exposure and a current diagnosis of a hearing loss disability. While the Veteran is competent to report his observable symptoms, such as reduced hearing acuity after exposures during service and since his separation from service, the Board finds that the etiology of the Veteran's current hearing loss falls outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of causation. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Consequently, the Veteran's opinion that purports to relate his hearing loss disability to active service is of no probative value. Accordingly, the Board finds that the evidence of record weighs against a finding that the Veteran's hearing loss was caused by any incident of his active service. 38 C.F.R. §§ 3.102, 3.303. Because the preponderance of the evidence is against the claim for service connection for bilateral hearing loss on a presumptive and direct, the appeal must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 2. Tinnitus Inasmuch as tinnitus is a chronic disease capable of lay observation, it can be service connected on the basis of continuity of symptomatology alone, without a medical nexus opinion. See, e.g., Walker. The Veteran has stated that his tinnitus symptoms began in service. There is no reason to doubt his credibility in this regard. In this case, affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus and service connection for tinnitus is warranted. 38 C.F.R. § 3.303(a). The Veteran’s tinnitus claim is, therefore, granted. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.