Citation Nr: 21029941 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 20-12 202 DATE: May 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have its onset during service and is not related to any incident of service. 2. The Veteran's tinnitus did not have its onset during service and is not related to any incident of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 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 October 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. A transcript is of record. Service Connection 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus is denied. Service connection will generally be awarded when a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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 on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). Id. In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone 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 threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran asserts that he has current bilateral hearing loss and tinnitus that are both the direct result of noise exposure during active service. See VA Form 21-4138, dated April 4, 2018. A VA examination report dated in July 2018 reflects audiometric findings establishing a current hearing loss disability. See July 2018 VA Examination. Specifically, the Veteran had a puretone threshold of 50 decibels at 500 Hz in his left ear, and of 40 decibels at 500 Hz in his right ear. Therefore, the Veteran was diagnosed to have a bilateral hearing loss disability. The Veteran's tinnitus is also established based on his competent and credible statements describing a constant "wind" sound in his ears, as reflected in the July 2018 VA examination report. See Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is a disability that can be established based on lay statements alone). Therefore, the first element of service connection has been met with regard to the Veteran's claims for service connection for bilateral hearing loss and tinnitus. See 38 C.F.R. §§ 3.303, 3.385. The Veteran served in the Air Force as a personal equipment specialist. See Form DD-214. He testified that he was around jet engines all day every day for his four years of service. See April 2021 Hearing Transcript. He stated that he was not given ear protection during his duties of unloading planes, and that it was constantly loud. See id. In-service noise exposure is established based on the Veteran's credible statements and the circumstances of his service. 38 C.F.R. § 3.303(a) (the places, types, and circumstances of service must be considered in determining entitlement to service connection). The Veteran has offered inconsistent statements regarding the onset of his symptoms of hearing loss and tinnitus. In July 2018, he stated that his hearing loss has been getting worse over the years but that it truly started right after his four years in service. See July 2018 Notice of Disagreement (NOD). However, at his Board hearing in April 2021, he stated that he estimates that his hearing diminished about 20 to 25 years prior, and that he did not experience any hearing loss symptoms during service. See April 2021 Hearing Transcript. With respect to tinnitus, at his July 2018 VA examination the Veteran reported the onset of his tinnitus to be about 5 to 7 years prior. At his Board hearing, he recalled complaining about his tinnitus 15 to 20 years prior. See April 2021 Hearing Transcript. However, when asked if he noticed tinnitus during service, he also testified that, "I can't remember that, but I -- it was not long -- I mean, I've had it for years. Years. As far back as I can remember I've had this. Since after I got out." The Board finds that the Veteran's statements placing the onset of his hearing loss and tinnitus symptoms during service and/or shortly after service lack credibility, as he has made conflicting statements about when his symptoms began. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran) A private medical treatment record shows that the Veteran's ears were totally occluded with cerumen in his external otic canal, and that his hearing was deficient as a consequence. See March 2016 Private Medical Treatment Record. Two months after this record, the Veteran had his ears cleaned out and his hearing was noted to be improved by 100 percent. See May 2016 Private Medical Treatment Record. The Veteran was afforded a VA examination in July 2018, where the VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were not related to in-service noise exposure, citing service entrance and exit examinations showing hearing within normal limits. See July 2018 VA Examination. The examiner explained that there was no significant threshold shift seen in either ear between entrance and separation. The examiner stated that, "the Veteran's MOS of survival equipment had a high probability for exposure to hazardous noise. However, given that normal hearing is seen in both ears from 500-6000 Hz on enlistment and separation audiograms, and there are no significant within normal threshold shifts seen in either ear, there is no evidence of acoustic trauma during the veteran's service time. As such, the veteran's hearing loss is less likely than not a result of military service." The VA medical opinion is probative, as it represents the conclusion of a medical professional specializing in audiology that is based on review of the Veteran's medical history, and is supported by a specific explanation that is consistent with the evidence of record and sufficient for the Board to make an informed decision. The Board notes that while the examiner conceded the Veteran's in-service exposure to hazardous noise, she explained that it did not cause "acoustic trauma" during service in light of the normal hearing shown on the enlistment and separation audiograms and no significant threshold shifts seen in either ear. The Veteran has not submitted competent evidence supporting a link between his current hearing loss and tinnitus and his period of service, including in-service noise exposure. While the Veteran is competent to state that his symptoms of hearing loss and tinnitus have been present since service, the Board does not find this history to be credible, as explained above. Further, whether in-service noise exposure may have caused the development of hearing loss and/or tinnitus many years later cannot be made based on lay observation alone given the long amount of time that elapsed. Accordingly, because he is a lay person in the field of medicine, the Veteran's unsupported opinion is not competent evidence on this medically complex issue. Therefore, it lacks probative value. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In any event, the Veteran's lay opinion is outweighed by the July 2018 VA medical opinion, which was rendered by a medical professional who provided a specific explanation for the conclusion reached. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). Accordingly, the Board finds that the criteria for service connection on a direct basis for the Veteran's bilateral hearing loss and tinnitus is not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a), (d). Because the Board finds that the Veteran's hearing loss and tinnitus did not manifest during service or until many years following service separation, service connection is not warranted based on chronicity in service or a continuity of symptoms after service, and is also not warranted on a presumptive basis for hearing loss or tinnitus that manifests to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). In sum, the preponderance of the evidence is against the Veteran's claims. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for both bilateral hearing loss and tinnitus is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Mohammad 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.