Citation Nr: 21029383 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 20-20 034 DATE: May 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss and tinnitus had onset in service, they did not manifest to a compensable degree within one year of discharge, and the Veteran's hearing loss and tinnitus disabilities are not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1112, 1113, 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1965 to September 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus disabilities which he attributes to his military service more than 50 years ago. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law 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, or 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. See 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran contends that he developed bilateral hearing loss and tinnitus due to acoustic trauma from routine weapons noise exposure and exposure to small and large vehicle engine noise during his military service. He claims that he regularly fired M-60 and M-14 guns on the firing range and that he was in close proximity to grenade explosions. The Veteran believes that this loud noise exposure contributed to his current hearing loss and tinnitus disabilities. As an initial matter, the Board observes that the medical evidence of record shows that the Veteran has a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. See January 2018 VA examination report. With regards to tinnitus, the Veteran reported on VA examination that he had tinnitus and the audiologist appeared to have found the Veteran's account of current tinnitus credible. Id. Moreover, the Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the first criterion for establishing service connection for hearing loss and tinnitus disabilities has been met. Additionally, the Veteran has specifically reported that he was exposed to significant acoustic trauma during service from firearms and small/large vehicle engine noise. A review of the Veteran's military personnel records reveals that his military occupational specialty (MOS) was medical specialist/assistant. While the Veteran may have been exposed to some loud noise during service, the MOS does not suggest sustained loud noise exposure during service. When the Veteran was afforded a VA audiological examination in January 2018, the examiner noted that the Veteran's enlistment and separation examinations were silent for any indication of hearing loss or tinnitus and that his MOS had "a low probability of hazardous noise exposure." See January 2018 VA examination report, pp 4, 5. Nevertheless, the Veteran's DD Form 214 shows that he received a sharpshooter (rifle) badge. Thus, the Board is willing to accept this fact as corroborative of his report of in-service noise exposure and concede that the Veteran was likely exposed to loud noise during his military service. The second criterion for establishing service connection for hearing loss and tinnitus disabilities has been met. Notwithstanding the foregoing, even if the Veteran was exposed to some acoustic trauma during service, this is not the same as having sustained the type of injury that causes both chronic hearing loss and/or tinnitus and having chronic disabilities that result from that trauma. In other words, even if he was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals, including a hearing loss by VA standards and/or tinnitus which were caused thereby. In this atypical case, the Veteran has both clear noise exposure during service and clearly has the problems at issue at this time. However, the Veteran has not reported experiencing chronic symptoms of hearing loss or tinnitus during service or continuously since service separation. Rather the Veteran has asserted only that his in-service noise exposure caused the subsequent development of hearing loss and tinnitus, which did not manifest until well after service. Significantly, there is no evidence of record with respect to chronic symptoms of hearing loss or tinnitus during service. As such, the Board finds that the Veteran did not experience chronic symptoms of sensorineural hearing loss or tinnitus during service. 38 C.F.R. § 3.303(b). Likewise, neither bilateral hearing loss nor tinnitus was shown within the first year of discharge and the presumptions 38 U.S.C. §§ 1112, 1113, 1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply. On the contrary, the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of bilateral hearing loss or tinnitus since service separation. He has not reported continuous symptoms since service during the course of this appeal or to health care professionals. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, as noted above, the Veteran has not reported continuous symptoms of hearing loss or tinnitus since service separation. In a September 2017 statement, the Veteran asserted, "Since I was discharged from service, I have had a low humming noise in my ears and my hearing loss has worsened over the years." While the Veteran's lay statements suggest he has experienced ongoing auditory symptoms since he separated from military service, he has inconsistently reported his medical history regarding his ears, as shown by statements made to the January 2018 VA examiner that his tinnitus had its onset "10 years ago" or that he was "not sure" regarding the exact date and circumstances surrounding that onset. The Board cannot place significant probative weight on his statements as a result. The remaining evidence of record either does not show hearing loss or tinnitus during, continuously present since service, or manifest within one year of separation from service. The post-service record provides negative evidence against these claims, including inconsistent statements from the Veteran regarding the onset of his hearing problems. The Board accordingly finds that the preponderance of the evidence is against chronicity during service, continuity of symptomatology, or manifestations within one year of service separation. Additionally, the record is silent for any complaints, diagnosis, or treatment regarding hearing loss or tinnitus until the Veteran was diagnosed with both disabilities during his January 2018 VA examination. This significant gap between separation from service in September 1967 and diagnosis in January 2018 is one factor, among others, weighing against a finding of continual symptoms since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). Even when considering the Veteran's statement to the VA examiner that his tinnitus had its onset 10 years ago, that reported onset was decades after the Veteran separated from military service. As a final matter, the Board finds that the weight of the evidence demonstrates that the current bilateral hearing loss and tinnitus are not otherwise related to active service, to include the in-service noise exposure. On VA examination in January 2018, the examiner observed that the Veteran's enlistment and separation examination were silent for diagnoses, complaints, or treatment for hearing loss and tinnitus during service and that his MOS as a medical assistant had a low probability of hazardous noise exposure. The examiner also found it significant that the record lacked any complaints of or treatment for tinnitus and hearing loss during the intervening years between his separation from service and the date of his current examination. Accordingly, the examiner opined that the Veteran's bilateral hearing loss and tinnitus were "less likely than not" caused by or a result of military noise exposure. The Board finds that the January 2018 VA examination report is adequate for evaluation purposes and highly probative. Specifically, the VA examiner reviewed the claims file, interviewed the Veteran, and conducted audiometric testing. There is no indication that the VA examiners were not fully aware of the Veteran's past and his claimed loud noise exposure during his military service. The Veteran has suggested throughout the course of this appeal that the current bilateral hearing loss and tinnitus were caused by the in-service noise exposure. Under the facts of this case that include no continuous post-service symptoms, the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of medically complex disorders such as bilateral sensorineural hearing loss, as defined by VA regulations, or tinnitus. Bilateral hearing loss and tinnitus can have various etiologies, such as acoustic trauma, head trauma, diseases, ototoxic drugs, etc. The ultimate questions in this case are related to an internal medical process which extend beyond an immediately observable cause and effect relationship. While the Veteran is competent to attest to hearing problems, as a lay person, it has not been shown that he had specialized training sufficient to determine the etiology of bilateral hearing loss or tinnitus, especially when the onset date is many years after service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence has been provided by the medical personnel who examined the Veteran during the current. The Board finds that the medical opinion rendered by the January 2018 VA examiner to be significantly more probative than the Veteran's lay assertions. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claims. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for bilateral hearing loss and tinnitus. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.