Citation Nr: 21020853 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-65 145 dsDATE: April 8, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to his military service. 2. The evidence is insufficient to show that the Veteran’s bilateral hearing loss had its onset in service or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the United States Army Reserve who served on active duty for training (ACDUTRA) from February 6, 1970 to June 6, 1970 for basic training, and thereafter for annual training with his last period of ACDUTRA between June 4 to 18, 1977. His military occupational specialty (MOS) was service as a cook, including supervisory positions as a senior enlisted member. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). In November 2020, the Veteran testified during a video conference hearing (Board Hearing) before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. Service Connection 1. Entitlement to service connection for tinnitus. The Veteran seeks entitlement to service connection for tinnitus. He contends that he has experienced ringing in his ears during and since service after he was exposed to loud noises in basic training without hearing protection. VA acknowledges that the Veteran has a currently diagnosed disability of tinnitus. Giving the benefit of any reasonable doubt to the Veteran, the Board finds that the evidence is at least in equipoise and, therefore, finds that his tinnitus began in and as a result of his military service. ACDUTRA is full time duty for training purposes performed by Reservists and members of the National Guard pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and members of the National Guard pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred during ACDUTRA and only for injuries incurred during INACDUTRA. See 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, to include organic diseases of the nervous system such as tinnitus, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree during service or within one year from the date of separation from active service. 38 C.F.R. §§ 3.307(a)(3), 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is different than most medical disabilities in that it is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). The Veteran provided testimony, both during his Board Hearing and in written statements, as well as statements to his examining medical providers, that during his basic training in 1970, he was subjected to loud noises from weapons training and infantry training to include firing various hand held weapons, participating in live grenade training, and being near weapons fire and explosions during infantry infiltration training. He provided photographs of his training platoon during this training which showed that the soldier firing the weapon did not have ear protection in place. The Veteran testified that he experienced ringing in his ears immediately after these training events and that when he told his trainers of this fact, they merely told him it would go away in a few days. See Board Hearing Transcript, page 3. This training was during a period of ACDUTRA. The Veteran also provided two written “buddy” statements by J.C. and B.C., both of whom confirmed that during their basic training they were not provided hearing protection during weapons and infantry training. J.C. stated that after these training events he would leave the range with ringing in his ears. Both reported that they have developed tinnitus and have subsequently been granted service connection for that disability. While the fact that both “buddies” developed and were granted service connection for tinnitus is not controlling in this Veteran’s claim, their corroboration of the Veteran’s claims that he was not provided hearing protection is relevant. The Veteran’ assigned MOS of cook has been determined to be a position for which there is a low probability of noise exposure. Additionally, the Veteran’s military service treatment records (STRs) do not contain any complaints of, treatment for, or diagnosis of medical problems related to tinnitus. The VA examiner who conducted the Veteran’s April 2017 VA audiological examination, and who also authored the November 2017 VA medical opinion, opined that the Veteran’s tinnitus is less likely as not caused by military noise exposure because the Veteran’s service treatment records did not contain complaints of tinnitus, that there was significant time delay in his seeking treatment for tinnitus, and that the studies provided by the Veteran were not relevant. However, the VA examiner did not adequately address the Veteran’s reports of noise exposure and actually experiencing ringing in his ears immediately following this training and thereafter. As such, the Board finds the VA examiner’s opinion is not dispositive and affords it less probative weight The Board reiterates that the Veteran is considered competent to report symptoms which indicate the onset and continued presence of tinnitus. See Charles, 16 Vet. App. 370. The Board finds nothing in the record which impugns his credibility on that matter, and the record does contain evidence which corroborates his testimony, and therefore, also finds him credible. Therefore, as the Board must resolve any reasonable doubt in the Veteran’s favor, the claim for entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that his hearing loss had its onset in service or is related to noise exposure in service. Specifically, the Veteran claims his hearing loss is due to noise exposure during his basic training from firing weapons, live grenade practice, and participating in infantry training which exposed him to periods of gunfire and other explosions. See, Hearing Transcript, pages 4-5 (Veteran indicates all of his weapons training noise exposure was during basic training). He also asserts that he was exposed to noise performing his duties as a cook, from riding in diesel trucks and being near electrical generators. All of these were without hearing protection. See, generally, Hearing Transcript, and the various written statements submitted by the Veteran. VA acknowledges that Veteran has a current diagnosis of bilateral hearing loss disability within VA regulations. However, the preponderance of the evidence is insufficient to show that the Veteran’s bilateral hearing loss had its onset in service, manifested as a qualifying chronic condition, or is otherwise related to service. As stated above, service connection may be granted for disability resulting from disease or injury incurred during ACDUTRA and only for injuries incurred during INACDUTRA. See 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6. To establish service connection for a disability, the evidence must show: (1) the existence of a present 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As with tinnitus, for certain chronic disorders, such as hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d 1331 (Fed. Cir. 2013). However, unlike tinnitus, hearing loss must be established by objective audiometric testing. 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory 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. Id. The Court has held that the threshold for normal hearing is from 0 to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Here, the Veteran’s service treatment records are silent for any complaints of, treatment for, or diagnosis of hearing loss while the Veteran was in service. This includes during his period of ACDUTRA for basic training, from which he separated in June 1970, and for any subsequent annual ACDUTRA. There is also no record in his STRs of his having sustained an injury related to hearing loss during any period of INACDUTRA. The audiological evaluation given to the Veteran in connection with his July 25, 1969 initial enlistment physical records his relevant audiometer results, in decibels, as follows: HERTZ Avg. 500 1000 2000 3000 4000 1000 - 4000 RIGHT 0 dB 0 dB 10 dB 20 dB 20 dB 12.5 dB LEFT 0 dB 0 dB 10 dB 10 dB 15 dB 8.75 dB His March 28, 1977 re-enlistment physical did not contain audiometric test results, though his hearing was stated to be “normal.” The Veteran checked the “No” box indicating he did not have any hearing loss issues. No other STR entries record additional audiometric testing. There is no record of the Veteran being tested for hearing loss which showed a hearing loss that manifested to a compensable level within one year of his separation from ACDUTRA. 38 C.F.R. § 3.307, 3.309. Giving the benefit of the doubt to the Veteran on the applicable date of “separation,” there is no such record of this level of hearing loss within one year of his discharge from the Army Reserves in April 1978. See Discharge Orders, from Army Ready Reserve, effective April 13, 1978; see also Hearing Transcript, page 6 (Veteran states discharge August 1978. The Veteran testified that while the ringing in his ears started immediately at the firing line in basic training, his hearing loss did not begin until the 1980’s. Id., pages 3-4, See also, VA Medical Opinion, November 2017, page4. The Board notes that the Veteran’s assigned MOS as a cook has been determined to have a low probability of significant noise exposure. The relevant remainder of the written statements submitted by the Veteran essentially mirror the details of the facts and history described above. The Veteran also submitted statements which advocate that the medical articles submitted in support of his claim establish his entitlement to service connection for his bilateral hearing loss. However, the Veteran is not competent to provide medical opinions. Without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning most medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The VA audiological evaluator who performed the Veteran’s April 2017 audiological evaluation and November Medical Opinion confirmed the Veteran’s bilateral hearing loss diagnosis. However, she opined that it was less likely than not related to his military service. The VA evaluator provided a detailed rationale to support her opinion which included detailed analysis of the Veteran’s relevant military service and medical history, review of his STRs, and analysis of documents submitted in support of his claim and the Veteran’s statements after the initial denial of his claim related to those additional documents. The rationale provided indicated that in additional to no direct service indication of hearing loss, there was also a lack established etiological basis to connect his delayed hearing loss with his military service. The Veteran submitted medical records from two private audiologists who performed audiological testing and provided positive nexus opinions. This includes the May 3, 2016 audiological evaluation test results and opinion letter from audiologist M.W., and the August 7, 2017 audiological evaluation test results and opinion letter from Dr. J.M. Both of these medical providers confirmed the Veteran’s diagnoses of significant bilateral hearing loss and tinnitus. M.W., also added that he Veteran’s post-service occupation was “as a corrections officer for 20 years with ear protection.” He did not go into detail what exactly this means. Both medical providers also provided opinions that the Veteran’s bilateral hearing loss was as likely as not due to noise exposure during his military service, in particular the weapons and infantry training described above. The Board finds both of these medical opinions to be of little probative value to establish service connection. While both medical opinions recite the service history provided by the Veteran, neither provides a detailed analysis of the etiological basis for the claimed service connection, and neither records the Veteran’ testimony that he did not experience hearing loss until the 1980s and how this delayed onset was etiologically related to his military service. The Board considers both opinions to be “net” opinions which do not assist the Board, particularly in contrast to the very detailed rational provided by the VA audiologist. The two “buddy” statements provided on behalf of the Veteran are, unfortunately, of little probative value on this issue. While both statements indicate that the Veteran was exposed to noise from weapons training during basic training, without hearing protection, neither is able to provide credible testimony that the Veteran actually suffered hearing loss from these events. Layno, 6 Vet. App. at 470. The fact that either or both of these two Veterans were granted service connection for their own hearing loss is not dispositive on the issue for this individual Veteran. His entitlement to service connection is dependent upon his own separate facts. Based on the above, the Board finds that the preponderance of the evidence does not support the Veteran’s claim for service connection for his bilateral hearing loss. The Board finds it significant that the Veteran indicated that he believed his hearing loss was due to the nose exposure from weapons training he experienced during basic training between February and June 1970, and that he did not begin experiencing hearing loss until the 1980s, more than 10 years later. His testimony did not indicate that he experienced hearing loss at that time, unlike his report of experiencing ringing in his ears. Further, the Veteran was given a physical examination in March 1977 as part of his re-enlistment. This examination did not note any hearing loss problems, either upon examination or due to the Veteran raising the issue or complaining of his having a hearing loss problem, seven years after his basic training. The Board finds the VA audiologist’s opinion to be the most probative as she provided a detailed analysis and rational which included the Veteran’s relevant history, analysis of the documents submitted by the Veteran in support of his claim along with his own analysis and summary of these documents, and her understanding of the established medical literature related to delayed onset hearing loss. The Board finds the private medical opinions submitted by the Veteran to be of less probative value as neither incorporated a detailed analysis of the full range of relevant facts and did not provide a detailed etiological analysis of how they determined that the Veteran’s hearing loss was actually connected to his military service. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The claim for service connection for bilateral hearing loss is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.