Citation Nr: 21042457 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-13 943 DATE: July 13, 2021 ORDER Service connection for bilateral hip disability is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's current bilateral hip disability was not diagnosed in service or within one year after discharge from service, did not have its onset during active service, and is not otherwise related to or caused by active service. 2. The preponderance of the evidence shows that the Veteran does not have a current diagnosis of bilateral hearing loss that meets the requirements of 38 C.F.R. § 3.385 3. The preponderance of the evidence shows that the Veteran's recurrent tinnitus was not diagnosed in service or within one year after discharge from service, did not have its onset during active service, and is not otherwise related to or caused by active service CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hip disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 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 June 1966 to May 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from Regional Office (RO) rating decisions dated in September 2011 and August 2015. In the September 2011 rating decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran's notice of disagreement (NOD) was received in October 2011. The RO issued a statement of the case (SOC) in January 2014. The Veteran's VA Form 9, substantive appeal to the Board, was received in March 2014. In the August 2015 rating decision, the RO denied entitlement to service connection for osteoarthritis of the bilateral hips. The Veteran's NOD was received in October 2015. The RO issued a SOC in February 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in March 2017. In February 2020, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. In April 2020, the Board remanded the case to the RO for further development and adjudicative action. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, to include arthritis and sensorineural hearing loss and tinnitus as other organic diseases of the nervous system, 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). 1. Entitlement to service connection for bilateral hip disorder. The Veteran contends that his current bilateral hip disability is caused by or related to active military service. Specifically, the Veteran testified at the February 2020 Board hearing that he injured his bilateral hips during advanced combat training, and he injured his hip and spine while he was stationed in the Republic of Vietnam. He stated that he walked with a limp due to the injury from service to the present. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. While the Veteran has a current disability, diagnosed as osteoarthritis of the bilateral hips, the preponderance of the evidence shows that the Veteran's osteoarthritis of the bilateral hips was not chronic in service, did not manifest to a compensable degree within the presumptive period, was not noted in service with attributable continuity of symptomatology, and is not otherwise related to an in-service injury, event, or disease. Turning to the evidence of record, the Veteran's VA treatment records shows that he was diagnosed with osteoarthritis of the bilateral hips. Thus, the medical evidence shows that the Veteran has a current diagnosis of a bilateral hip disability. The Veteran's service treatment records reveal that the Veteran did not complain of or receive treatment for symptoms related to the left and/or right hip(s) during active service. The service treatment records also reflect that the Veteran was not diagnosed with osteoarthritis of the bilateral hips at any time during service. An October 1966 service treatment record documents that the Veteran reported pain in the back for the past two years. A June 1967 service treatment record documents that the Veteran sought treatment for a low back problem, and he was diagnosed with lumbosacral strain. There was no mention of hip pain or other problems associated with the hip. The first medical evidence of complaints or a diagnosis of a right hip disability was in a July 1995 private treatment record that documents X-rays of the right hip show mild osteoarthritic changes of the right hip joint. A March 2003 private treatment record documents that the Veteran had bilateral hip pain for many years, and he was diagnosed with severe degenerative arthritis. Thus, the first medical evidence of a right hip problem after service occurred approximately 27 years after discharge from service and the first medical evidence of a left hip problem after service occurred approximately 35 years after discharge from service. As noted above, the Veteran testified at the February2020 Board hearing that he injured his bilateral hips during advanced combat training, and he injured his hip and spine while he was stationed in the Republic of Vietnam. He also asserted that he walked with a limp due to the injury from service to the present. While the Veteran is competent to report having experienced symptoms of bilateral hip pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of osteoarthritis of the bilateral hips. The issue is medically complex, as it requires the ability to interpret diagnostic medical testing to include x-rays. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In light of the foregoing, regarding the issue of whether service connection is warranted on the basis of the presumption of service connection for chronic diseases, the weight of the above evidence is against manifestation of degenerative joint disease of the left hip in service or within the one-year presumptive period. See 38 C.F.R. § 110 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Further, the claims file contains a negative VA medical opinion with respect to the issue of whether the Veteran's current diagnosis of osteoarthritis of the bilateral hips is caused by or related to active military service. Specifically, in June 2020, a physician provided a VA medical opinion that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The physician explained that during service, bilateral hip condition, was acute only and no documented visit for such is shown. There is no evidence of chronicity of care and symptoms are subjective only. The service treatment records are silent for significant hip injury and the back issue in service is felt to be an acute episode only. There is no continuity from service to the onset in the 1990s for his hip conditions. The physician felt that the etiology of the bilateral hip condition was likely only age, familial, weight, and post-service events. The physicians VA medical opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes his osteoarthritis of the bilateral hips is related to injuries that occurred to active military service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of interpreting complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The diagnosis and etiology of osteoarthritis of the bilateral hips cannot be competently addressed by the Veteran as a lay person based on personal observation, such as, visual observation or by any other senses. The diagnosis of osteoarthritis of the bilateral hips was based on interpretation of symptoms, and clinical and diagnostic tests to include x-rays, which requires medical knowledge. The only competent evidence regarding a whether any nexus exists between the Veteran's osteoarthritis of the bilateral hips and his military service is the opinion of the physician, which definitively concluded that the Veteran's current bilateral hip disorder was less likely than not related to the Veteran's active service. The June 2020 medical opinion is considered probative, based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. The Veteran has not provided any competent medical or lay evidence to rebut this opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Consequently, the Board gives more probative weight to the June 2020 medical opinion than the Veteran's lay statements. 2. Entitlement to Service connection for bilateral hearing loss. The Veteran contends that he currently has bilateral hearing loss that is related to acoustic trauma during military service. He testified at the February 2020 Board hearing that he was exposed to loud noise from rockets while stationed in the Republic of Vietnam as a K9 dog handler. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a bilateral hearing loss disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In assessing the Veteran's service connection claim for hearing loss, the Board must first determine whether the Veteran has a current hearing loss disability under VA regulations. Hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). A September 2011 VA audiology examination report reveals that the auditory thresholds for the right and left ears did not meet the requirements of 26 dB or greater in at least three of the required frequencies listed above or 40 decibels or greater in any of the required frequencies. Speech recognition score of the right ear using the Maryland CNC test was 100 percent. Speech recognition score of the left ear using the Maryland CNC test was 98 percent. Based on the Veteran's testimony in February 2020 that his hearing loss became worse after the September 2011 VA examination, the claim was remanded to obtain another VA audiology examination. An April 2021 VA audiology examination report reveals that the Veteran's auditory thresholds in both ears met the requirement of 40 dB or more in at least one of the required frequencies. Speech recognition score of the right ear using the Maryland CNC test was 94 percent. Speech recognition score of the left ear using the Maryland CNC test was 100 percent. However, the April 2021 VA examiner determined that the puretone test results were not valid for rating purposes. The examiner explained that the puretone averages do not corroborate with speech reception thresholds. The Veteran had considerable difficulty completing testing. He was very anxious and jumpy to auditory stimuli during testing that he stated was due to his PTSD. The examiner also determined that the use of speech discrimination score is not appropriate for this Veteran. Accordingly, as the examiner determined that the puretone test results and speech discrimination scores are not valid, the Board is unable to use the examination results to determine if the Veteran met the requirements of a current hearing loss disability under VA regulations. Therefore, the medical evidence of record reflects that the Veteran does not have a current diagnosis of a bilateral hearing loss disability under VA regulations. The evidence supporting bilateral hearing loss disability consists of the lay statements from the Veteran. Specifically, the Veteran contends that he has hearing loss due to active service. Although lay testimony is competent as to observable symptoms and some medical matters, the criteria for establishing a current hearing loss disability are specifically enumerated in 38 C.F.R. § 3.385 which requires minimum audiometric and speech recognition scores to meet those criteria. Cf. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran's statements therefore cannot establish a current hearing loss disability for purposes of VA compensation benefits. The grant of service connection requires competent evidence to establish a diagnosis of the claimed disability. In the case of hearing loss, the regulations explicitly state the auditory decibel threshold required. Congress specifically limits entitlement for service-connected disability to cases where an in-service disease or injury has resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of evidence of a present disability due to disease or injury, there can be no valid claim. Id. Accordingly, without evidence of a current bilateral hearing loss disability, the Board must find that the Veteran's claim of entitlement to service connection for bilateral hearing loss is not warranted. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The benefit of the doubt doctrine is not applicable in this regard, because the preponderance of the evidence is against the claim for service connection. 3. Entitlement to service connection for tinnitus. The Veteran contends that he currently has tinnitus due to acoustic trauma during military service. He testified at the February 2020 Board hearing that he was exposed to loud noise from rockets while stationed in the Republic of Vietnam as a K9 dog handler. The April 2021 VA examination report documents that the Veteran also reported that he worked on the flight line and was exposed to constant aircraft noise. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury or disease. While the Veteran has a current disability, diagnosed as recurrent tinnitus, the preponderance of the evidence shows that the Veteran's tinnitus was not chronic in service, did not manifest to a compensable degree within the presumptive period, was not noted in service with attributable continuity of symptomatology, and is not otherwise related to an in-service injury, event, or disease. Turning to the evidence of record, an April 2021 VA examination shows that the Veteran was diagnosed with recurrent tinnitus. Thus, the medical evidence shows that the Veteran has a current diagnosis of tinnitus. The Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (a veteran is competent to testify as to the presence of tinnitus); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends that he experienced acoustic trauma in military service due loud noise from rockets while stationed in the Republic of Vietnam and while working on the flight line during active service. The Veteran's service personnel records show that the Veteran's military occupational specialty included aircraft security guard while stationed in North Dakota and security police guard while stationed in the Republic of Vietnam. Thus, the Board finds that loud noise exposure would be consistent with the Veteran service. Accordingly, the Veteran's history of exposure to loud noise is conceded. The medical evidence of record does not show that the Veteran's tinnitus began during military service or within the one-year presumptive period. In this regard, the Veteran's service treatment records do not reveal that he had complained of or sought treatment for symptoms of tinnitus during active service. There is also no documentation in the Veteran's service treatment records of a diagnosis of tinnitus. The first lay evidence that documents the Veteran indicating he experienced tinnitus was in March 2011 claim for service connection, approximately 43 years after discharge from military service. The first medical evidence of complaints or a diagnosis of tinnitus was in the April 2021 VA audiology examination, approximately 53 years after discharge from active military service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is one piece of evidence weighing against a claim of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the Veteran's lay statement of experiencing tinnitus directly after discharge from service is not credible. In this regard, the Veteran's statements documented in the April 2021 VA examination are inconsistent with the other evidence of record. Specifically, the April 2021 VA examination report reveals that the Veteran noticed tinnitus directly after leaving service after exposure to all the aircraft noise. This suggests that the Veteran indicated that he first noticed tinnitus within one year after discharge from service. However, the April 2021 examiner also documented that the onset of the Veteran's tinnitus was in approximately 1975. The September 2011 VA audiology examination reports reveals that the Veteran did not report recurrent tinnitus and that the Veteran denied having tinnitus. In light of the foregoing, regarding the issue of whether service connection is warranted on the basis of the presumption of service connection for chronic diseases, the weight of the above evidence is against manifestation of tinnitus in service or within the one-year presumptive period. See 38 C.F.R. § 110 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Regarding the issue of whether the Veteran's current diagnosis of recurrent tinnitus is caused by or related to active military service, the claims file contains a negative VA medical opinion. Specifically, the April 2021 VA examiner provided the medical opinion that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the onset of tinnitus is reported by the Veteran to be post-separation. There is no report of tinnitus in service treatment records, at separation, or in the medical records until the time of the claim. The examiner noted that the current literature does not support late onset noise-induced tinnitus. The Veterans' claim file indicates no report of tinnitus as far back as his 2011 examination. During the examination, the Veteran reported intermittent episodic tinnitus that he does not state began during his service. Although he was exposed to aircraft noise, his report of tinnitus appears to have begun post separation from service. The examiner's medical opinion is probative and persuasive as to the issue of whether the Veteran's current tinnitus is caused by or related to acoustic trauma during active service, because it is based on a review of the claims file and the examiner provided an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran believes his tinnitus is related to loud noise exposure that occurred to active military service, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical knowledge and the ability to interpret medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, the etiology of tinnitus cannot be competently addressed by the Veteran as a lay person as the onset occurred many years after the acoustic trauma that occurred during active service. The only competent evidence regarding whether any nexus exists between the Veteran's tinnitus and his military service is the opinion of the physician, which definitively concluded that the Veteran's current tinnitus was less likely than not related to the Veteran's active service. The April 2021 medical opinion is considered probative, based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. The Veteran has not provided any competent medical or credible lay evidence to rebut this opinion or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Consequently, the Board gives more probative weight to the April 2021 medical opinion than the Veteran's lay statements. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.