Citation Nr: 23017828 Decision Date: 03/22/23 Archive Date: 03/22/23 DOCKET NO. 19-04 095 DATE: March 22, 2023 REMANDED Service connection for a right knee condition is remanded. Service connection for a left knee condition is remanded. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. A right ear hearing loss disability has not been shown. 2. The Veteran's left ear hearing loss disability was not shown as chronic in service and did not manifest to a compensable degree within one year of separation from service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran's tinnitus was not shown as chronic in service and did not manifest to a compensable degree within one year of separation from service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 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. §§ 1131, 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 September 1984 to August 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. At the hearing, the undersigned Veterans Law Judge agreed to hold the record open for 90 days to submit additional evidence. 38 C.F.R. § 20.709. That 90-day period has expired. 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, such sensorineural 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. Service connection for bilateral hearing loss is denied. The Veteran contends that his bilateral hearing loss began during service, or is otherwise due to excessive noise exposure as part of his duties during service. See e.g., February 2018 claim; May 2018 notice of disagreement. At the August 2022 Board hearing, the Veteran reported extreme noise exposure because he worked with a large number of aircrafts. The Veteran testified that he did not have the same level of noise exposure after service. The Veteran was unable to recall when he first noticed hearing problems, but he testified that he first had problems hearing people or noise when faced away from them. He was first told he had this directional hearing problem for 8 to 10 years. Impaired hearing is considered a disability for VA purposes 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. Initially, the Board notes that the Veteran's military occupational specialty was an airman. Military personnel records show that he was also designated as a plane captain for VF-102 squadron F-14a aircrafts. VA has also conceded in-service acoustic trauma and noise exposure. See May 2018 rating decision. The service treatment records are silent for any diagnosis, complaints, or diagnosis related to hearing loss. Notably, the Veteran did not have impaired hearing for VA purposes at the November 1983 enlistment examination, during audiograms performed in September 1984 and October 1985, or at separation. At the August 1987 separation examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 10 5 LEFT 40 15 10 15 -5 The Veteran was afforded a VA examination in April 2018. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 15 15 LEFT 20 15 20 35 45 Test results were valid for rating purposes. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and left ear. Use of speech discrimination score was appropriate for this Veteran. Although the examiner gave a diagnosis of right ear hearing loss at 6000 Hertz or higher, the Board notes that the evaluation results do not meet the definition of impaired hearing for VA purposes. 38 C.F.R. § 3.385. As to the left ear, the Veteran's audiological results meet the definition of impaired hearing. However, the examiner indicated that the Veteran's left ear hearing loss was not related to service, to include the conceded noise exposure. The examiner acknowledged that the Veteran had a threshold shift at 500 Hertz when comparing the enlistment and separation examination, but indicated that the Veteran's current examination showed significant improvement and any threshold shift was not significant. There was no other evidence of impaired hearing during the separation examination, to include any report of decreased hearing. Thus, the examiner noted that there was no evidence of permanent auditory damage during service. As such, there was no nexus between the currently diagnosed left ear hearing loss and conceded noise exposure. Upon review, the Board finds that service connection is not warranted. Initially, the Veteran does not have a diagnosis of a right ear hearing loss disability for VA purposes. In order to warrant direct service connection, there must be competent evidence of the existence of the claimed disability at some point during an appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The competent April 2018 VA examination showed that the Veteran's hearing did not meet the definition of hearing loss for VA purposes. The evaluation was performed by an audiologist who was trained to evaluate the claimed disability. Thus, the April 2018 examination is highly probative evidence. There are no other audiological evaluations which record right ear hearing loss for VA purposes. As discussed below, the Veteran is not competent to diagnose hearing loss. The Board thus finds that the Veteran did not have right ear hearing loss during or approximate to the pendency of the appeal See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). While the Veteran reported that he had hearing loss which began during service or as due to noise exposure, he is not competent to do so. The Veteran is not competent to diagnose hearing loss or opine on the etiological link between any hearing loss and service. The disability involves an internal auditory process and relies on the relationship between different systems in the body. Thus, it is a complex medical question and opining on hearing loss falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Because the Veteran has not been shown to possess the requisite medical training or experience, his lay opinion has no probative value. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Moreover, the Veteran's statements that his current left ear hearing loss disability began during service are not credible. Although he reported having trouble with hearing loss during service in the May 2018 notice of disagreement, the Veteran was unable to recall when he first started noticing hearing loss at the August 2022 Board hearing. Rather, he recalled that the first time someone noticed his decrease hearing ability and informed him was 8 to 10 years prior (approximately 2012 to 2014). Given the inconsistent nature of the Veteran's testimony, his reports that his disability began during service are not given probative weight. Rather, the competent and probative VA examination showed no nexus to the current left ear hearing loss and service, to include noise exposure. The Board finds the April 2018 opinion to be probative because the examiner has the appropriate training, expertise, and knowledge to evaluate the claimed disability. The examiner provided a cogent rationale, which included consideration of the Veteran's reported symptoms, and the clinical history. The examination report and opinion provided the Board with a clear description of all relevant data points necessary to evaluate this claim. Furthermore, the claims file does not contain competent and credible evidence indicating the Veteran's hearing loss onset during service or to a degree of 10 percent or more within a year of discharge from service. Although the Veteran's separation examination showed a 40 decibel threshold at 500 Hertz, the April 2018 examiner explained that this was not a permanent threshold shift or significant. The examiner explained that the subsequent examinations showed a substantial improvement at that Hertz. Moreover, the Veteran did not credibly report that hearing loss was observable during service or in the year after separation from service. Thus, the evidence is against continuity of symptomatology from service. In sum, the evidence persuasively weighs against the Veteran having a current diagnosis of right ear hearing loss. The evidence also persuasively weighs against a nexus between the Veteran's left ear hearing loss and service, to include exposure to noise from several aircrafts on the flight deck. In addition, there was not continuity of symptomatology for left ear hearing loss since service, and hearing loss did not manifest to a degree of 10 percent or more within a year of discharge from service. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). As such, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Service connection is not warranted. 2. Service connection for tinnitus is denied. The Veteran contends that his tinnitus began during service, or is otherwise due to excessive noise exposure as part of his duties during service. See e.g., February 2018 claim; May 2018 notice of disagreement. At the August 2022 Board hearing, the Veteran reported extreme noise exposure from working on the flight line. In addition, the Veteran testified that he had ringing in the ears during service, with increasing duration since service. As noted above the Veteran's noise exposure has been established. However, the service treatment records are silent for any diagnosis, complaints, or diagnosis related to tinnitus. After service, the Veteran was noted to have an assessment of tinnitus in January 2018 VA treatment records. The Veteran reported that tinnitus had been a problem for the past 20 years (i.e., in 1998). The Veteran was afforded a VA examination in April 2018. The examiner opined that the Veteran's current disability was not likely related to service. The examiner explained that the Veteran reported that recurrent tinnitus began around 20 years ago (i.e., in 1998). The examiner also indicated that there were no reports of tinnitus in service, at separation or in medical records until the time of the claim and explained that the current literature does not support late onset of noise-induced tinnitus. The examiner concluded that there was no nexus between the Veteran's current tinnitus and service. The examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent or credible evidence to the contrary. The Board notes that tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2003). However, the Veteran's statements regarding the onset of tinnitus are not credible. In VA treatment records and at the April 2018 VA examination, the Veteran reported that tinnitus approximately many years after he left service, in 1998, which the Board notes this would be about 10 years after he separated from active service. In the context of this claim, the Veteran has also reported that tinnitus begun during service. The Board finds his statements to VA medical professionals made in the context of receiving treatment are more accurate and probative than his statements made in association with a claim for monetary benefits. See Southall-Norman, 28 Vet. App. 346, 356 (2016). Moreover, his conflicting statements impugn his credibility regarding onset. See Caluza v. Brown, 7 Vet. App. 498 (1995). Thus, the statements that tinnitus began during service are neither credible nor probative. In sum, the Veteran has a current diagnosis of tinnitus, an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the competent and credible evidence persuasively weighs against the disability being chronic in service, manifesting to a compensable degree within a presumptive period, and being noted in service with attributable continuity of symptomatology. Further, the evidence persuasively weighs against a causal nexus between the Veteran's tinnitus and service. As such, the benefit of the doubt doctrine does not appl. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Thus, service connection is not warranted. REASONS FOR REMAND 1. Service connection for a right knee condition is remanded. 2. Service connection for a left knee condition is remanded. The Veteran contends that his bilateral knee condition began during service, or is otherwise due to injuries and the general rigors of his duties in service. See e.g., February 2018 claim; May 2018 notice of disagreement; August 2022 Board hearing. At the Board hearing, the Veteran reported a medical history which includes a private 2006 right knee arthroscopy and partial meniscectomy. In addition, in the April 2018 VA examination, the Veteran indicated that this was related to a workman's compensation claim. The treatment records which led to this procedure and records related to the procedure are not of record. Moreover, VA treatment records appear to follow this procedure (and thus any complaints therein) by 8 years. Thus, these records appear to be the most remote complaints or treatment for the knee disabilities. At present, VA has not requested that the Veteran identify or authorize the release of private records, and VA has otherwise not attempted to obtain these records. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: Ask the Veteran to complete a VA Form 21-4142 for the private clinicians who treated, evaluated, and performed the 2006 procedure on the Veteran's knee, or any clinician who has treated his knee disabilities. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.