Citation Nr: 22017236 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 19-39 060 DATE: March 24, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus, to include as due to bilateral hearing loss, is denied. FINDING OF FACT 1. The Veteran's bilateral hearing loss was not incurred in or due to his time in service. 2. The Veteran's tinnitus was not incurred in or due to his time in service nor is it proximately due to a service-connected disability. CONCLUSION OF LAW 1. The criteria for the establishment of service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for the establishment of service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1983 to November 1986. These matters are on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge in September 2021. A transcript has been associated with the file. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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 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. The threshold for normal hearing is 0 to 20 decibels. The Veteran, as a layperson, may be competent on a variety of matters concerning the nature and cause of his disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Court has found a lay person competent to identify tinnitus which is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to report that he was exposed to loud noise during service. See generally Charles v. Principi, 16 Vet. App. 370, 374 (2002). Once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Veteran contends he has bilateral hearing loss and tinnitus that were incurred in or due to his time in service. Specifically, the Veteran's military occupational specialty (MOS) while in service was equipment records and parts specialist. While in service, the Veteran was involved in a lot of loud noise involving howitzers and other artillery. The Veteran was also exposed to helicopter noise and that he noticed the ringing in his ears began in basic training. The Veteran said they were provided ear plugs, but that the noise of the howitzer was so loud that nothing helped. The Veteran also said he was responsible for training people on artillery. The Veteran reported driving heavy equipment without hearing protection and they always carried their ear plugs but didn't always use them, depending on the situation. The Veteran said he had never been fitted for hearing aids. The Veteran said that his daughter said he yelled a lot when he would speak and that he didn't have much of a social life. (See September 2021 hearing transcript.) The Veteran has been diagnosed with bilateral hearing loss for VA purposes. The Veteran has also reported symptoms of tinnitus. The Veteran's service treatment records (STRs) are negative for mention or treatment of hearing problems or ringing in his ears. The Veteran's separation examination does not show hearing loss for VA purposes. The Veteran had an examination for his bilateral hearing loss and tinnitus in October 2015. The Veteran was found to have hearing loss for VA purposes in both ears. The examiner reviewed the Veteran's file and opined it was less likely than not the Veteran's bilateral hearing loss was incurred in or due to his time in service. The examiner explained that the Veteran's STRs did not show any significant threshold shifts and that the separation examination showed normal hearing with no audiometric threshold poorer than 15 dB hearing loss in either ear. The examiner noted the Veteran reported unspecified ringing that occurred "sometimes" and that the Veteran was "unable to provide further details." The examiner opined the Veteran's tinnitus was less likely than not incurred in or due to his time in service or due to his hearing loss, saying that the Veteran did not experience any significant tinnitus and that it was "no different than the occurrence of this condition in the general population." The Veteran had another examination for his bilateral hearing loss and tinnitus in November 2018. The Veteran was shown to have bilateral hearing loss for VA purposes. The examiner opined it was less likely than not the Veteran's bilateral hearing loss was incurred in or due to his time in service, explaining there was normal hearing upon separation with "thresholds too low for any permanent significant shift in hearing thresholds to have occurred from entrance." The examiner also pointed out there was no report of decreased hearing at time of separation. While the examiner conceded noise exposure and that the relationship between noise exposure and auditory damage was well documented, hearing loss was not conceded based on this noise exposure alone. The examiner opined the Veteran had a diagnosis of hearing loss and that his tinnitus was at least as likely as not a symptom associated with the Veteran's hearing loss. However, the examiner also opined it was less likely than not the Veteran's tinnitus was due to his exposure to noise while in service. The examiner reported there was not sufficient evidence to support the claim that the level of noise the Veteran was exposed to resulted in tinnitus. The examiner also stated that "tinnitus is a recognized symptom of hearing loss, which developed after the end of the Veteran's period of service." The Board has also reviewed the remainder of the Veteran's file, including his treatment records, for indication that his bilateral hearing loss and tinnitus were due to his time in service. However, the Board did not find any such evidence in those records. Indeed, in a few records, the Veteran denied any problems with hearing loss or tinnitus. (See e.g. June, October 2018 treatment records.) While the Veteran has been diagnosed with hearing loss for VA purposes, the Veteran's STRs do not show any in-service complaints of hearing trouble and his separation examination does not indicate a problem with hearing loss. Additionally, two separate examinations indicate the Veteran's hearing loss is not due to his time in service. Pertaining to the Veteran's tinnitus, while the Veteran is competent to report ringing in his ears and that he said it began in service, the Board also notes no complaints of such in his STRs or on his separation examination. The Board does not doubt the Veteran was exposed to noise while in service. However, the objective evidence of record does not indicate that the Veteran's hearing loss was due to this noise exposure. Additionally, an examiner, though noting the Veteran's tinnitus, opined it was due to his hearing loss, rather than noise while in service. However, the Veteran is not currently service-connected for hearing loss and therefore, it cannot be the basis for a finding of service connection. Also weighing against the Veteran's claim is the decades long time gap between his separation from service and the first reports of hearing loss or tinnitus problems. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). Thus, while the Board understands it cannot rely solely on the lack of treatment as a reason to deny the Veteran's claims, the time gap and lack of treatment do tend to weigh against his claim. Regarding the claims above, the Board acknowledges and has considered the Veteran's statements that his conditions bother him and that he believes his hearing loss and tinnitus are related to the noise he was exposed to while in service. The Board does not doubt the Veteran's report that he was exposed to loud noise in service, in part due to loud artillery and machinery. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as the nature and etiology of his complex medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, while the Board has carefully considered the Veteran's and his family's statements about his symptoms, these statements must be weighed against the objective evidence of record. The Board finds that the objective evidence of record, which includes the examinations discussed above, are most probative in determining the etiology of the Veteran's conditions. The Board finds the examinations of record to be adequate as the examiners saw the Veteran in person, reviewed his file, and offered opinions supported by explanations. As noted above, it is important to note that at some points the Veteran's own prior statements do not support this claim. It is important for the Veteran to understand that the medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran's belief that his hearing loss and tinnitus are the result of service, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Except as otherwise noted, because the evidence is not in approximate balance or nearly equal, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.