Citation Nr: 21026231 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-28 267 DATE: April 30, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder, is remanded. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has, at any point during the appeal period, had a current diagnosis of a bilateral hearing loss disability for VA purposes. 2. The preponderance of the evidence is against a finding that the Veteran's tinnitus was present in service, within one year after separation from service, or is otherwise related to service, to include to any in service incurrence, event, or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss 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 have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b); 38C.F.R. §§3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from March 1973 to April 1974. Historically, the current appeal seeking service connection stems from an October 2014 rating decision, which, in pertinent part denied service connection for bilateral hearing loss, tinnitus, and posttraumatic stress disorder (PTSD). In the Veteran’s June 2016 VA Form 9, substantive appeal, she requested a hearing before the Board in Washington, DC. Such a hearing was scheduled for April 2019; however, the Veteran failed to report. A request for postponement has not been received or granted; therefore, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). Service Connection 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 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). 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, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 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. 1. Entitlement to service connection for bilateral hearing loss. 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). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a 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). The Veteran seeks service connection for bilateral hearing loss that she claims is due to noise exposure while serving in the military. A review of the Veteran’s DD Form 214 shows that her military occupational specialty (MOS) was as an aerospace control and warning systems operator. In light of the duties associated with the Veteran’s MOS, her exposure to hazardous noises in service is acknowledged in this case. Nevertheless, the Board finds that, notwithstanding the Veteran’s in-service exposure to hazardous noise, there is no evidence of a current hearing loss disability to sustain her claim for service connection for bilateral hearing loss. Specifically, it is not shown that the Veteran has a diagnosis that meets the VA definition for impaired hearing under 38 C.F.R. § 3.385. In this regard, the Veteran’s service treatment records (STRs), to include her March 1974 separation physical examination, are silent for any complaints, findings, treatment or diagnoses related to bilateral hearing loss. Further, her postservice treatment records show that the Veteran did not indicate that she felt she had hearing loss until January 2015. A March 2015 VA treatment record indicated that the Veteran had “essentially normal hearing” with the exception of a mild sensorineural hearing loss bilaterally at 2000 Hertz. See VA Treatment Record received June 2016. In May 2016, the Veteran underwent a VA audiological examination to assess her reports of bilateral hearing loss. From that evaluation, the puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 20 20 Left 25 25 30 20 25 The Veteran’s speech recognition scores were 98 percent in both ears. The examiner documented normal hearing in the right ear and sensorineural hearing loss in the left ear. See May 2016 VA Examination. Although the VA examiner indicated that the Veteran had left ear sensorineural hearing loss, the Board emphasizes that the documented auditory threshold and speech recognition scores do not meet the criteria for a hearing loss disability under VA regulations. See 38 C.F.R. § 3.385. The Board acknowledges the Veteran’s contentions that she has hearing loss caused by in-service noise exposure from radar. See May 2016 VA Examination. Although the Veteran is competent to report symptoms of hearing loss, as a layperson, she is not competent to diagnose hearing loss for VA purposes or to link her hearing difficulties to noise exposure sustained during active service. This requires medical expertise, clinical testing, and knowledge outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has not been shown to have such training or expertise; therefore, she is not competent to provide a diagnosis or an etiology opinion in this case. In light of the foregoing, the Board finds that the Veteran does not meet the VA criteria for establishing a hearing loss disability under 38 C.F.R. § 3.385. As such, the preponderance of the evidence is against a finding that the Veteran has a current bilateral hearing loss disability. As it is well-established that the existence of a current disability is the cornerstone of any claim for VA disability compensation, the Veteran's claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus. The Board finds that there is competent evidence to suggest that the Veteran currently has tinnitus. See May 2016 VA examination. A review of the record shows the Veteran’s STRs are silent for any complaints, findings, treatment or diagnoses related to tinnitus. Further, her postservice treatment records are silent for complaints related to tinnitus until March 2015, many years after separation from service. These records are also silent for any opinions concerning the etiology of the Veteran’s tinnitus. See VA Treatment Record received June 2016. In May 2016, the Veteran underwent a VA examination to assess the etiology of her tinnitus. The examiner noted that the Veteran reported intermittent tinnitus for both ears, which she described as “ringing/buzzing.” The Veteran indicated that her tinnitus occurred two or three times a month, and that she had noticed it for 10 to 15 years. After an examination, the examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. In support of this conclusion, the examiner noted that the Veteran’s record contained no complaints of tinnitus, her tinnitus was very infrequent, and finally the Veteran denied any ear trouble at service separation. The examiner similarly opined that the Veteran’s tinnitus was not a symptom associated with the Veteran’s hearing loss. In this regard, the examiner noted that the Veteran’s hearing was found to be normal upon separation from the military. See May 2016 VA Examination. There are no contrary opinions of record. The Board acknowledges the Veteran’s contention that her tinnitus began in service and has continued since service. See December 2013 Fully Developed Claim. The Board further recognizes that the Veteran is competent to diagnose tinnitus. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran’s contention regarding continuity of symptomatology is contradicted by the more probative May 2016 VA examination, wherein she reported experiencing tinnitus only for the preceding 10 to 15 years. See May 2016 VA Examination. Notably, this report was made in the context of a physical examination. Accordingly, the Board finds the Veteran’s contention regarding continuity of symptomatology to be not credible. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s tinnitus either began during service, within one year after separation from service, or is otherwise related to her active service. As the preponderance of the evidence is against the claim, 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 tinnitus must be denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric condition is remanded. Although the Veteran’s claim for an acquired psychiatric disorder was claimed and adjudicated as one for PTSD, it has been expanded to entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Such is appropriate as a review of the record reflects that the Veteran has additional psychiatric diagnoses. The Board finds that the above issue must be remanded for additional development. In pertinent part, the record indicates that the Veteran has current psychiatric diagnoses, to include major depressive disorder. The Veteran has also suggested that her psychiatric symptoms are related to stress from her in-service duties as an aerospace control and warning system operator. See May 2016 Statement in Support of Claim. In spite of this evidence, no VA medical opinion has been obtained. The Board finds that such evidence is sufficient to trigger VA's duty to obtain a VA examination and medical opinion to determine the nature and etiology of the Veteran’s psychiatric disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006); see also 38 C.F.R. § 3.159(c). Accordingly, the Veteran must be provided a VA examination consistent with the directives herein. The matters are REMANDED for the following action: 1. Arrange for a VA examination and medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's acquired psychiatric disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. (a.) The examiner must provide a diagnosis for any current acquired psychiatric disorder. In rendering such diagnoses, the examiner must consider/discuss the Veteran's previous diagnosis for major depressive disorder. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed acquired psychiatric disorder had its onset in or is otherwise related to active duty service, to include any verified in-service stressor. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.