Citation Nr: 22008034 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 17-28 426 DATE: February 11, 2022 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 manifest in service or within one year thereafter and is not otherwise causally or etiologically related to his miliary service. 2. The Veteran's tinnitus did not manifest in service or within one year thereafter and is not otherwise related to his military service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in active service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was not incurred in active service, nor may it be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113; 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 February 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the record. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). For the showing of 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. As organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they 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, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by the 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. 38 C.F.R. § 3.385. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss and tinnitus. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of hearing loss and tinnitus. In fact, a December 1967 separation examination found his ears and drums to be normal, and an audiogram did not reveal hearing loss. The Board notes that sensorineural hearing loss and tinnitus, nor manifestations sufficient to identify them, were not shown during the Veteran's military service. Rather, the hearing examinations performed during his active service were normal. The pertinent regulations require that manifestations are "noted" in the service records and that is not case in this instance. Therefore, while currently diagnosed sensorineural hearing loss and tinnitus are chronic diseases under 38 C.F.R. § 3.309(a), no notations of the diseases or any characteristic manifestations of sensorineural hearing loss and tinnitus have been shown in the service records. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and sensorineural hearing loss and tinnitus may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. The medical evidence also does not show that the Veteran had bilateral hearing loss or tinnitus that manifested to a compensable degree within one year of his military service. The Board does acknowledge the Veteran's September 2020 hearing testimony that his tinnitus began in service and continued since that time. See also September 2020 written statement (received in October 2020). Although lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he has or had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303 (a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, supra. In this case, the Board finds that the Veteran is competent to state that he has had tinnitus since his military service. However, his allegations are inconsistent with the contemporaneous record, and he has provided inconsistent statements regarding the onset of the disorder. In this regard, VA medical records dated in June 2004, February 2008, February 2009, and April 2014 show that the Veteran denied having tinnitus on numerous occasions after his military service. During a March 2015 VA examination, the Veteran reported that his tinnitus may have begun in 1969, which would have been after service and appears speculative. Therefore, the Board finds that the reported history of the onset and continuity of tinnitus is not reliable or credible. Moreover, despite his reported onset of tinnitus in service, the Veteran has not indicated that his hearing loss began therein. During the July 2020 hearing, the Veteran's wife did testify that she had always noticed that the Veteran had hearing problems. However, she stated that she had known him for 48 or 49 years, which indicates that she met him after his military service. A June 2004 VA medical record also documented the Veteran's report that his hearing loss had a gradual onset five years earlier, which would have been decades after his military service. Based on the foregoing, the Board finds that the weight of the competent and credible evidence does not persuasively show that the Veteran's bilateral hearing loss and tinnitus manifested in service or within one year thereafter. Nevertheless, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has claimed that he had military noise exposure and that this was the injury sustained from which his hearing loss and tinnitus resulted. The Veteran is considered competent to relate a history of noise exposure during service, and there is no reason to doubt the credibility of his statements regarding his military noise exposure. In addition, the post-service medical records show that the Veteran has been diagnosed with bilateral hearing loss by VA standards. See 38 C.F.R. § 3.385. He is also competent to report that he is currently experiencing tinnitus. Thus, the remaining question is whether the Veteran's current bilateral hearing loss and tinnitus are related to his noise exposure in service. A March 2015 VA examiner opined that the Veteran's current bilateral hearing loss was not at least as likely as not related to his military service. In so doing, she noted that the Veteran's military occupation specialty (MOS) was field artillery basic and that he reported exposure to military noise from significant hours of training with artillery in Germany. The examiner conceded that the Veteran had military noise exposure. However, she observed that the Veteran's enlistment and separation examinations showed bilateral hearing within normal limits and that no threshold shifts were documented from enlistment to separation in either ear. She also noted that no complaints of tinnitus were documented in the Veteran's service treatment notes. The examiner cited to an Institute of Medicine (IOM) study from 2006 indicating that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. She reported that the IOM panel concluded that, based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was "unlikely." Therefore, based on the objective evidence of the Veteran's audiograms at enlistment and separation, it made it less likely as not that the Veteran's current hearing loss and related tinnitus are due to or a result of in-service noise exposure. There is no medical opinion otherwise relating the Veteran's current bilateral hearing loss and tinnitus to his military service. The Board affords substantial probative weight to the March 2015 VA examiner's opinion, as it is based on a review of the claims file, to include the Veteran's own statements and contentions, and an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner reviewed relevant medical literature and provided a thorough rationale in support of her conclusions. The Board has also considered the Veteran's lay statements that his current hearing loss and tinnitus are related to his military service, to include his noise exposure therein. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the etiology of bilateral hearing loss and tinnitus, fall outside the realm of common knowledge of a lay person, particularly in light of the delayed onset of the disorder and some evidence suggesting possible post-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to provide such an opinion, the Board finds that the March 2015 VA examiner's opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and are supported by a complete rationale based on such knowledge. The examiner also reviewed the claims file and considered the Veteran's reported history, and medical literature. Based on the foregoing, the Board finds that the Veteran's current bilateral hearing loss and tinnitus did not manifest in service or within one year thereafter and are not otherwise causally or etiologically related to his military service, to include his noise exposure therein. Accordingly, the Board concludes that service connection for bilateral hearing loss and tinnitus is not warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.