Citation Nr: 21025763 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-13 454 DATE: April 28, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s current hearing loss arose in service, or within one year of separation, or is related to acoustic trauma in service. 2. The preponderance of the evidence is against a finding the Veteran’s tinnitus arose in service or for many years thereafter and is against a finding that it is related to acoustic trauma in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. § 1110, 1112, 1113; 38 C.F.R. § 3.303, 3.304, 3.307, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 1101, 1112, 1131, 1137, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1961 to July 1965. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2013 rating decision of the Department of Veterans’ Affairs (VA) regional office (RO). The Board remanded this appeal for further development in September 2020. Service Connection Generally, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss and tinnitus, 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). Bilateral Hearing Loss The Veteran seeks entitlement to service connection for bilateral hearing loss due to acoustic trauma in service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though 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 v. Brown, 5 Vet. App. 155 (1993). The Veteran has current bilateral hearing loss as defined by VA regulations and exposure to acoustic trauma during service has been conceded by VA. See May 2020 Supplemental Statement of the Case. Therefore, the question remaining before the Board is whether his current hearing loss is due to the acoustic trauma in service, began in service, manifested to compensable level within one year of separation from service, or has shown continuity of symptomatology since service. The hearing loss was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with hearing loss until 2010, decades after his separation from service and decades outside of the applicable presumptive period. The Veteran has not asserted that his hearing loss began in service or within one year of separation from service. Rather, in a June 2010 VA treatment record, he reported gradual bilateral hearing loss. The Veteran’s military enlistment and separation hearing exams are present in the record. The 1961 entrance exam shows the Veteran passed a whisper test, but the audiometer was inoperable on the day of his exam, and thus there are no hearing thresholds recorded. The 1965 separation exam shows the Veteran’s hearing thresholds were within normal limits in both ears. Based on the lay and medical evidence, there is no indication that the Veteran’s hearing loss manifested during service, within one year of separation from service, or with continuity of symptomatology since service. Service connection is not warranted on any of these bases. Service connection for hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing loss and an in-service acoustic trauma. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran received a VA auditory examination in April 2013. However, the examiner did not provide a nexus opinion. Another examination was provided in February 2021 pursuant to the Board remand. The February 2021 VA examiner opined that the Veteran’s hearing loss is less likely than not related to in-service acoustic trauma. The rationale was that the Veteran’s hearing was presumed sound at entrance to service in the absence of enlistment examination thresholds, and thresholds were normal at separation. Therefore, his hearing was normal during and at separation from service. The examiner concluded that current hearing loss is less likely than not related to the acoustic trauma in service. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has considered the contentions raised in a March 2021 brief. First, the Veteran’s representative stated: “Service connection can always be granted after service based on a medical opinion (38 CFR § 3.303(d)). Hearing loss at separation is not required under Hensley v. Brown, 5 Vet. App. 155 (1993).” This is true. However, here there is no medical opinion supporting the claim that the Veteran’s current hearing loss is related to acoustic trauma in service upon which the Board may base a grant of service connection. The representative also asserted that “The 15/15 whisper testing from the veteran’s Service Medical Records is inadequate for consideration in this case. These audiograms cannot be used as a basis for denial of service connection, as they did not contain a Maryland CNC Controlled Speech Discrimination Test or test at the frequencies specified in 38 CFR 4.85(a).” Neither the Board the 2021 examiner relied on the whisper testing to reach its conclusions. On the contrary, both presume that in the absence of audiometry testing, the Veteran’s hearing was sound at entrance to service, in keeping with the presumption of soundness. 38 C.F.R. § 3.305(b). Moreover, the representative’s argument misconstrues the regulation at 38 C.F.R. § 4.85(a). That regulation governs “[a]n examination for hearing impairment for VA purposes.” Id. The examinations conducted at entrance and separation from service are not conducted for VA purposes but for military purposes. Finally, the brief states that the Veteran is sincere in his belief that his bilateral hearing loss is related to acoustic trauma during military service. The Board does not doubt the sincerity of the Veteran. However, he is not competent to provide a nexus opinion in this case. There is no indication he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of hearing loss is a matter not capable of lay observation and requires medical expertise to determine. Thus, the Veteran's own opinion regarding the etiology of his hearing loss is not competent medical evidence. In sum, the preponderance of the competent, credible, and probative evidence is against finding the Veteran's hearing loss arose in service or for many years thereafter and is against a finding that it is related to acoustic trauma in service. The claim is denied. Tinnitus For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 U.S.C. § 1101; 38 C.F.R. § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). The Veteran is competent to diagnose and report tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The evidence shows a current diagnosis of tinnitus, and VA has conceded that the Veteran was exposed to acoustic trauma in service. Thus, the first two elements of service connection are met. The question is whether tinnitus is related to the acoustic trauma or had its onset during or within one year of separation from service. The Veteran’s service treatment records are silent for reports, diagnosis, or treatment of tinnitus. The Veteran does not actually assert that tinnitus began in service or within one year of separation. In an August 2011 VA treatment record, the Veteran stated he had a ringing in both his ears, that “sometimes sounds like cicadas.” He also reported in an April 2013 VA examination that he hears a constant buzzing or hissing sound in both ears, that he first noticed “years ago,” with no specific onset or event of occurrence. In the February 2021 VA auditory examination, the examiner opined the Veteran’s tinnitus was less likely than not caused by his service. The examiner noted the Veteran first noticed ringing in his ears “years ago,” without a specific onset or occurrence. The examiner also noted there were no reports of tinnitus prior to August 2011. He stated the evidence does not support tinnitus onset during service, or within one year after service. While the Veteran is competent to report his tinnitus, no evidence indicates it onset during service or within one year after service. As such, service connection for tinnitus is not warranted on a presumptive basis or based on continuity of symptomatology. Service connection for hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus and an in-service acoustic trauma. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran received a VA auditory examination in April 2013. The examiner opined it is less likely than not that tinnitus is caused by military noise exposure. This opinion was supported by the rationale that “[t]he first documented complaint of tinnitus was in 2011. There was no clear evidence of a significant permanent threshold shift for either ear.” Another examination was provided in February 2021 pursuant to the Board remand. The February 2021 VA examiner opined that the Veteran’s tinnitus is less likely than not related to in-service acoustic trauma. The rationale was that thresholds were normal at separation and there were “[n]o tinnitus reports were found during service or during the 45 years post service prior to tinnitus reports.” The Board finds these opinions probative, as they provided clear conclusions with supporting data, and reasoned medical explanations connecting the two. Stefl, 21 Vet. App. at 124-25; Nieves-Rodriguez, 22 Vet. App. at 304. The Board does not doubt the Veteran’s sincere belief that his tinnitus is related to acoustic trauma during military service. However, while he is competent to diagnose tinnitus, he is not competent to provide a nexus opinion in this case. There is no indication he has specialized training sufficient to render such an opinion. Jandreau, 492 F.3d at 1376-77. In this regard, the etiology of tinnitus is a matter not capable of lay observation and requires medical expertise to determine. Thus, the Veteran’s own opinion regarding the etiology of his tinnitus is not competent medical evidence. (Continued on the next page)   In sum, the preponderance of the competent evidence is against a finding the Veteran's tinnitus arose in service or for many years thereafter and is against a finding that it is related to acoustic trauma in service. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Brewer, 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.