Citation Nr: 22012302 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-32 304 DATE: March 3, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A current diagnosis of bilateral hearing loss did not begin during active service or manifest within a year thereafter, has not been chronic or continuous since service separation, and is not otherwise related to an in-service injury or disease. 2. A current diagnosis of tinnitus did not begin during active service or manifest within a year thereafter, has not been chronic or continuous since service separation, and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was previously remanded in November 2021 for additional development. It has now been returned to the Board. 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, including hearing loss and tinnitus, 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 hearing loss The Veteran seeks service connection for bilateral hearing loss. He asserts that his service as a mechanic resulted in exposure to such acoustic trauma as engines, generators, and other loud noises for prolonged periods, and service connection is therefore warranted. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See 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 U.S. 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, 5 Vet. App. at 159. The record reflects the Veteran had a pre-induction audiological examination in May 1965 and another examination on enlistment in October 1965. The Board notes that, based on recent historical research of service audiometric practices, results of service department audiometric tests prior to January 1, 1967, were generally conducted using American Standards Association (ASA) units. For service department audiograms conducted after December 31, 1970, it is assumed the standards set by the International Standards Organization-American National Standards Institute (ISO-ANSI) were used for reporting test results. However, between January 1, 1967, and December 31, 1970, some service department audiograms were recorded in ISO-ANSI units, whereas others were recorded using ASA units. On pre-induction examination in May 1965, pure tone thresholds, in decibels, were as follows (ISO-ANSI units after conversion are in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 0(10) 0(5) LEFT 0(15) 5(15) 5(15) 0(5) On induction examination in October 1965, pure tone thresholds, in decibels, were as follows (ISO-ANSI units after conversion are in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT 0(15) 0(10) 0(10) 0(5) LEFT 0(15) 0(10) 5(15) 0(5) On service separation examination in December 1967, pure tone thresholds, in decibels, were as follows (ISO-ANSI units after conversion are in parentheses): HERTZ 500 1000 2000 3000 4000 RIGHT -5(10) -5(5) 0(10) 0(10) 0(5) LEFT -5(10) -5(5) 0(10) 0(10) -5(0) The December 1967 audiogram does not itself identify the units used; however, a December 2021 VA examiner identified the results as ASA units. Post-service, the Veteran first claimed service connection for bilateral hearing loss and tinnitus in April 2016. He was afforded a July 2016 VA audiological examination, which confirmed bilateral sensorineural hearing loss, as defined by VA at 38 C.F.R. § 3.385. After examination of the Veteran and review of the claims file, the VA audiologist opined that the current bilateral hearing loss was less likely than not (less than 50 percent probability) caused by or a result of an event in military service. The audiologist noted that review of the Veteran's service treatment records (STRs) revealed hearing sensitivity thresholds within normal limits bilaterally at entrance and on exit from service. The examiner stated that "no threshold shifts were noted between examinations" in October 1965 and December 1967. The examiner further stated the medical literature on noise-induced hearing loss did not support the idea of delayed onset hearing loss years after exposure to noise. The examiner cited to the Institute of Medicine's (IOM) 2006 report entitled "Noise and Military Service: Implications for Hearing Loss and Tinnitus." The examiner opined that, given normal hearing bilaterally at entrance into and exit from the military, it was unlike that the Veteran's current hearing loss was caused by or a result of noise exposure during military service. In its November 2021 remand order, the Board noted the Veteran July 2016 VA examiner did not discuss whether the in-service audiometric findings were adjusted to reflect current ISO-ANSI units. The Board also found reliance on the IOM report addressing military noise exposure and hearing loss was misplaced because the study was ultimately inconclusive as to the onset of hearing loss. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Thus, this appeal was remanded for an additional medical opinion. Another VA examination was afforded the Veteran in December 2021. The claims file was reviewed in conjunction with the examination, and a current diagnosis of bilateral sensorineural hearing loss was confirmed. Regarding the etiology of this disability, the examiner noted the Veteran's military occupational specialty (MOS) of mechanic is rated as having a moderate probability for hazardous noise exposure. The Veteran was noted to report a significant history of noise exposure during service, as well as before and after service. The service entrance examination documented hearing within normal limits, according to the VA examiner, and the separation examination likewise documented the same, that is, hearing within normal limits. The examiner found no evidence of a significant threshold shift in service. The examiner further noted there was no objective method to quantify the amount of hearing loss associated with noise exposure versus aging. Thus, based on review of all evidence of record and examination of the Veteran, the examiner determined it was unlikely the current bilateral hearing loss was a result of the military noise exposure. Also in support of his claim, the Veteran has provided his own assertions. He has reported that during service, he worked in a hanger used for aircraft maintenance, exposing him to aircraft engines and other loud noises on a frequent basis. While lay statements are sufficient to describe what witnesses observe, such as perceived declines in hearing acuity, lay statements are not competent to diagnose a hearing loss disability or the extent of impairment as set forth in VA regulations. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In evaluating this claim, the Board places great probative weight on the opinion provided by the various VA examiners, as these opinions had clear conclusions and a reasoned medical explanation. In the absence of any competent evidence to the contrary, the competent evidence is clearly against a nexus between service and the Veteran's current bilateral hearing loss many years later. The Board has also considered the statements of the Veteran linking current hearing loss to his military service. However, the Veteran is not competent to attribute his hearing loss to any instance of his military service, as he has not demonstrated that he is an expert in determining the etiology of hearing loss and is a layperson in this regard. While it is error to categorically reject a layperson's nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson's competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). The Veteran's statements linking his current hearing loss to service are not within the realm of knowledge of a layperson. Rather, the question of nexus is a complex question that requires expertise. Specifically, it involves the impact of acoustic trauma and loud noises on the auditory functioning of the ear and, in this case, medical professionals have reviewed the claims file, examined the Veteran, and provided well-reasoned medical opinions that considered the impact of the Veteran's noise exposure on his hearing disability and found an etiologic relationship unlikely. The Board additionally notes in this regard that, while the Veteran has asserted his hearing loss is related to service, there is no objective evidence of a hearing loss disability until many years post-service. Therefore, the lay statements submitted in support of this claim are outweighed by the competent, credible, and probative medical evidence of record. In summary, the Board notes that, while the evidence of record shows the Veteran has a current bilateral hearing disability, the probative evidence of record demonstrates that such is not related to his service. Indeed, as noted, a demonstrable hearing impairment was not documented by audiograms conducted during service or for many years thereafter, and competent experts have opined that the current bilateral hearing impairment is not due to in-service noise exposure. Moreover, the clinical evidence of record fails to show that bilateral hearing loss manifested until more than fifty years after discharge from active duty. Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Accordingly, as the Veteran's bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest to a compensable degree within one year of separation from service, service connection for bilateral hearing loss is not warranted. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, because the competent evidence of record is against the Veteran's claim, that doctrine is not applicable, and the Veteran's claim is denied. 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus. He asserts that his service as a mechanic resulted in exposure to such acoustic trauma as engines, generators, and other loud noises for prolonged periods, and service connection is therefore warranted. He also asserts his tinnitus is secondary to his bilateral hearing loss, for which he also seeks service connection. See 38 C.F.R. § 3.310. On VA examination in July 2016, the Veteran reported bilateral intermittent tinnitus occurring 2-3 times per week for a few minutes per episode. He was unsure when his tinnitus began, stating onset was "several years ago." A history of post-service noise exposure was noted, as the Veteran reported working in factories and at construction sites from 1968 to 2016. Regarding the etiology of the Veteran's tinnitus, the VA examiner opined that it was at least as likely as not tinnitus was a symptom of his hearing loss, as such an association is known in the medical literature. The examiner, however, found no direct nexus with service, as there was no evidence of a clear cause or onset in service. Pursuant to the Board's November 2021 remand order, a new VA audiological examination was afforded the Veteran in December 2021. On that occasion, the Veteran denied any recurrent tinnitus. Regardless of that statement, the current disability requirement for service connection is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. See McLain v. Nicholson, 21 Vet. App. 319 (2007). After considering the totality of the record, the Board finds the evidence to be against the award of service connection for tinnitus. Such a disability did not manifest during service, as the Veteran himself reported only that it began several years prior to his 2016 VA examination, which was itself more than 50 years after service. The Board thus finds there is no credible evidence of tinnitus having onset or continuing since service. While the Veteran's tinnitus has been linked to his current bilateral hearing loss, service connection on a secondary basis is not warranted, as service connection for bilateral hearing loss has itself been denied herein. The Board acknowledges that the Veteran believes his post-service tinnitus is related to his military service; however, to the extent that his lay assertions are intended to establish a nexus between his tinnitus and service, the Veteran is not shown to have the necessary knowledge or expertise to opine on complex matters, such as the etiology of an inner ear condition. Therefore, based on the foregoing, the Board finds the competent, credible, and probative evidence of record is against the grant of service connection for tinnitus on any basis. Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application and his claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.