Citation Nr: 22012579 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 19-22 622 DATE: March 4, 2022 ORDER 1. Entitlement to service connection for a bilateral hearing loss disability is denied. 2. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The evidence supports findings that a bilateral hearing loss disability did not have its onset in service, sensorineural hearing loss was not manifested within one year following service discharge, and it is not otherwise related to service. 2. The evidence supports findings that tinnitus did not have its onset in service, it was not manifested within one year following service discharge, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 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 1965 to July 1967. On his July 2019 VA Form 9, the Veteran requested a videoconference hearing before the Board. Hearings were scheduled for July 31, 2020, and June 14, 2021, but the Veteran requested postponement. A virtual hearing was scheduled for September 22, 2021, and notice of the hearing date and place was provided to both the Veteran and his representative. However, the Veteran did not report for the hearing, and no request for postponement was received and granted prior to the hearing date. Under 38 C.F.R. § 20.704(d), when a veteran fails to appear for a scheduled hearing and no request for postponement is received, the claim is processed as though the request for hearing had been withdrawn. Therefore, this case will be processed as though the request for a hearing was withdrawn, and the Board can now proceed to appellate review. In October 2021, the Board remanded the claims for service connection for a bilateral hearing loss disability and tinnitus for a new VA examination. The Board finds there was substantial compliance with this development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). For the purpose 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, which are organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. The Veteran contends his bilateral hearing loss and tinnitus are the result of noise exposure in service. On the October 2016 VA Form 21-4138 Statement in Support of Claim, the Veteran noted his military occupation (MOS) was as a pioneer engineer which frequently exposed him to hazardous noise during service. On the October 2018 Notice of Disagreement, the Veteran, through his representative, stated there was enough evidence to grant based upon the "as likely as not" standard. On the July 2019 VA Form 9, the Veteran stated hazardous noise exposure should have been conceded due to his MOS, and his MOS was not noted by the VA examiner nor was it noted in the September 2018 rating narrative. The Board has carefully reviewed the evidence of record and finds that the evidence is persuasively against the award of service connection for a bilateral hearing loss disability and tinnitus on a direct and presumptive basis. The reasons follow. As to evidence of a current disability, the Veteran's bilateral hearing loss meets the requirement of a current bilateral hearing loss disability for VA purposes as documented in the November 2021 VA audiological evaluation. 38 C.F.R. § 3.385. The Veteran credibly reported that he experiences recurrent tinnitus. Tinnitus is a disability capable of lay observation; therefore, the Board considers his statement to be sufficient evidence a disability. Therefore, the Veteran meets the first element of a service-connection claim. As to evidence of an in-service disease or injury, the Veteran's MOS as a pioneer (which involves construction and engineering) has a high probability of noise exposure. Noise exposure has also been conceded by the VA. Thus, the Veteran meets the second element of a service-connection claim. As to evidence of a nexus between the current disability and service, the Board finds that the evidence is persuasively against a nexus. The Board notes the August 2018 VA examination was found to be inadequate in the October 2021 Board decision; therefore, the examiner's medical opinion will not be discussed herein. For example, on the July 1967 separation Report of Medical History, the Veteran denied hearing loss. During the August 2018 VA examination, the Veteran reported hearing loss since Vietnam without a specific date or circumstance of onset. The Board notes the first instance of hearing loss in the record is in a February 2017 VA treatment record. However, the Board notes this treatment record notes numerous other medical conditions for which the Veteran is undergoing private treatment such as kidney stones, GERD, bulging discs in the lumbar spine, and a Vitamin D deficiency. The Veteran did not complain of hearing loss until 2017. In November 2021, the Veteran underwent a VA examination. The examiner provided a negative nexus opinion. The examiner opined the Veteran's statements indicate hearing difficulty occurred after his service separation which is consistent with his extreme noise exposure for over 25 years in the noisy printing company. In reviewing Veteran's records, specific results from 1965 and 1967 revealed hearing within normal limits. The Veteran indicated he was in various noisy situations during service; however, there was no specific information highlighted in the medical records linking those environments to his current hearing loss. The VA examiner's opinion considered the full facts of the Veteran's service and post service noise exposure. As the examiner noted, the Veteran continued to show a drop in hearing from 2018 to 2021. He cited to the extensive exposure of noise in the Veteran's vocation which lends more to the probability that the work environment was in fact the cause of his current hearing loss and tinnitus. The Board affords the November 2021 VA medical opinion high probative value, as the examiner reviewed the Veteran's claims file, to include his complete medical history, examined the Veteran in-person, and provided an opinion that included a medical rationale based on the facts of the case, wherein the examiner specifically addressed clinical findings within the Veteran's claims file and medical principles. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Further, there is no evidence that this examiner is not competent to opine as to the nature and etiology of the Veteran's hearing loss and tinnitus. This opinion constitutes probative evidence against a finding that the Veteran's bilateral hearing loss and tinnitus are caused by service or began in service. During the August 2018 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss, which is a chronic disease, where service connection can be granted if the chronic disease manifests to a compensable degree within one year following service discharge. The Veteran also reported tinnitus, which is also a chronic disease, with no specific date of onset. The first documentation of sensorineural hearing loss and tinnitus is in an August 2018 VA examination report, which is 51 years after service discharge. There is no competent evidence upon which to find that bilateral sensorineural hearing loss or tinnitus manifested within one year following service discharge. Thus, the evidence is persuasively against presumptive service connection for bilateral sensorineural hearing loss and tinnitus based on a chronic disease. In reaching the above conclusions, the Board finds it significant that neither the Veteran nor his representative have presented or identified any contrary medical opinion that would support the claims for service connection for a bilateral hearing loss disability and tinnitus under any theory of entitlement. In fact, the only evidence of record in support of the Veteran's claim are his own lay statements and the arguments presented by his representative. The Board acknowledges the Veteran's sincere belief that his bilateral hearing loss disability and tinnitus are related to active service. While the Veteran is competent to report his medical history or symptoms of disability, he does not have the specialized medical training to opine as to the etiology of a complex medical condition such as hypertension. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's lay contentions as to etiology are not considered competent and do not weigh against the probative value of the November 2021 negative nexus opinion. (Continued on the next page) For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a bilateral hearing loss disability or tinnitus is warranted. As outlined above, the evidence of record persuasively weighs against the award of service connection for a bilateral hearing loss disability and tinnitus. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Accordingly, the Veteran's appeal is denied. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, Associate 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.