Citation Nr: 21022494 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 16-54 858 DATE: April 16, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss either began during service, within one year of separation from service, or was otherwise caused by his active service. 2. The preponderance of the evidence is against a finding that the Veteran’s tinnitus either began during service, within one year of separation from service, or was otherwise caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to September 1982. In February 2021, a Board hearing was held before the undersigned Veterans Law Judge (VLJ). The record was held open for 30 days to allow for the submission of additional evidence. Since then, no records have been received. Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. In addition, service connection for certain chronic diseases, including organic diseases of the nervous system such as bilateral hearing loss and tinnitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). 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, 1 Vet. App. at 53. The Veteran contends that his bilateral hearing loss and tinnitus are related to hazardous noise exposure he sustained during active duty service. Audiological testing performed at the October 2015 VA examination confirms that the Veteran has bilateral sensorineural hearing loss and tinnitus. Further, the Veteran’s service personnel records reflect that his military occupational specialty (MOS) was as an armor crewman. The MOS of an armor crewman has been determined by the Department of Defense to involve a high probability of hazardous noise exposure. Therefore, the Board concedes the Veteran was exposed to hazardous noise in service. What must still be shown is competent medical evidence linking his current hearing loss disability/tinnitus to the hazardous noise exposure in service. For the reasons set forth below, however, the Board concludes that the preponderance of the evidence is against establishing a nexus and these claims must be denied. Gilbert, 1 Vet. App. 49 (1990). Review of the record shows the Veteran’s service treatment records (STRs) are silent for any complaints, findings, treatment, or diagnoses related to bilateral hearing loss or tinnitus. There is also an absence of documented complaints, treatment, or diagnosis for hearing impairment until many years following separation from service. Notably, the Veteran appears to have first reported hearing loss and tinnitus in July 2015 (over 30 years after separation from service) when he established care for these problems. His treatment records are also silent for any opinions concerning the etiology of bilateral hearing loss or tinnitus. Significantly, neither the Veteran, nor his representative has contended that his hearing loss began during active duty service. Rather, the Veteran contends that he noticed hearing loss when he got out of service and it got progressively worse since that time. See February 2021 Board Hearing Transcript. The Board recognizes that the Veteran is competent to report symptoms of bilateral hearing loss. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nevertheless, while the Veteran's statement implies that hearing loss symptoms began after he left service, it is not probative of whether he developed hearing loss to a compensable degree within one year of separation of service, as he is not otherwise competent to diagnose hearing loss for VA purpose. Id. Consequently, service connection for bilateral hearing loss on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. The question of whether the Veteran’s current bilateral hearing loss/tinnitus were otherwise etiologically linked to his active service was addressed in the October 2015 VA examination report. The examiner diagnosed the Veteran with bilateral hearing loss and tinnitus and rendered negative nexus opinions. The examiner noted that the Veteran’s audiometric testing within 6 months from separation of service was normal with the worst threshold at 10 decibels. The examiner also noted that the Veteran reported onset of tinnitus in the “late 1980s.” The Veteran’s STRs were otherwise silent for hearing loss and/or tinnitus complaints. The examiner referenced the Institute of Medicine Study (IMS) that indicates there was not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later and it was unlikely that such delayed effects occur. In consideration of the foregoing, the examiner explained that there was no evidence on which to conclude that the Veteran’s hearing loss was caused by or a result of military noise exposure. The IMS study also indicated that there was a possibility of delay in onset of tinnitus. However, as the interval between noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. The examiner explained that tinnitus due to noise exposure or acoustic trauma is known to have noticeable onset soon after the incident and, because the Veteran reported onset of tinnitus many years after leaving military service, it was less likely as not caused by or a result of military service. There are no competent or credible medical opinions to the contrary. The Board acknowledges the Veteran’s February 2021 Board Hearing testimony that his bilateral hearing loss began within a year after service, but he did not pay much attention or seek treatment for this condition and his tinnitus began during service when he was in a tank during service and never stopped. To the extent that these statements suggest that the Veteran developed a compensable hearing loss disability within one year of separation of service or suggest that tinnitus had its onset during service, they are contradicted by the more probative evidence of record. In pertinent part, as noted by the VA examiner above, just prior to separation from service, the Veteran hearing was evaluated and there was no documented hearing loss. In fact, as noted, the evidence of record seems to show that the Veteran initially sought to establish care for hearing loss and tinnitus as early as July 2015 (over 30 years after separation from service). The Veteran also inconsistently reported that his tinnitus had its onset both during and after service. The Board finds that such evidence weighs against the Veteran’s statements. As such, the Board finds the Veteran’s statements regarding continuity of symptomatology are entitled to very little to no probative value and are outweighed by the more probative October 2015 VA examiner’s opinion above. (Continued on the next page)   In sum, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss and/or tinnitus either began during service, within one year of separation from service, or was otherwise etiologically related to his active service. As the preponderance of the evidence is against these claims, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Accordingly, the appeal seeking service connection for bilateral hearing loss and tinnitus must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.