Citation Nr: 1736639	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  15-39 462	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


Appellant represented by:	Veterans of Foreign Wars of the United States


R. Casadei, Counsel 


The Veteran served on active duty from June 1964 to March 1967.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


1.  The Veteran has currently diagnosed tinnitus and bilateral sensorineural hearing loss as defined by VA regulation.

2.  The Veteran was exposed to loud noises (acoustic trauma) to both ears during service.

3.  Symptoms of tinnitus and bilateral hearing loss were not chronic in service. 

4.  Symptoms of tinnitus and bilateral hearing loss did not manifest to a compensable degree within one year of separation. 

5.  Symptoms of tinnitus and bilateral hearing loss have not been continuous since service separation. 

6.  The Veteran's tinnitus and bilateral hearing loss are not etiologically related to service.


1.  The criteria for service connection for bilateral hearing loss have not been met. 
38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2014); 38 C.F.R. 
§§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2016).

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016).


Duties to Notify and Assist

In this case, 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 Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303 (a).  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).  Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2016) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b).  Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013).
Establishing service connection generally requires (1) medical evidence of 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 of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 .
Analysis for Service Connection for Hearing Loss and Tinnitus

The Veteran contends that his currently diagnosed bilateral hearing loss and tinnitus are the result of his in-service noise exposure.

The Veteran's service personnel records reflect that he was a deck hand on the 
U.S.S. Stormes.  In a July 2013 statement, the Veteran indicated that his duties included painting the steel deck and performing other maintenance of the ship's structure.  He also manned the guns on the ship, including 40mm and 20mm guns.  After review of the record, the Board finds that the Veteran was exposed to acoustic trauma in service.

Next, the Board finds that the Veteran has a sensorineural hearing loss "disability" in both ears that meets the criteria of 38 C.F.R. § 3.385.  Impaired hearing is considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The Court has held that a veteran may establish the required nexus between current hearing loss disability and his term of military service if he can show by competent evidence that his hearing loss disability resulted from the in-service acoustic trauma even where the hearing loss disability does not arise in service.  Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

In a September 2015 VA audiological examination speech discrimination in the right ear was 72 percent and 76 percent in the left ear.  As speech recognition scores using the Maryland CNC Test were less than 94 percent, the Veteran meets the meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385.  

The Board also finds that the Veteran has a current tinnitus disability.  See September 2015 VA examination report.  The Veteran is competent to describe observable symptoms such as ringing in the ears and loss of hearing as these are observable symptoms.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. at 374 (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service).

Service treatment records are negative for any complaints or diagnosis for hearing loss or tinnitus.  At his enlistment and separation examination, the Veteran had a normal whisper test bilaterally.  The Board notes that whisper tests are not sensitive to high frequency hearing loss, which is the type of hearing loss most commonly caused by noise exposure.  Therefore, whisper tests are not considered reliable evidence of normal hearing or hearing impairment.  A May 1957 service treatment record, immediately preceding service separation, indicates that the Veteran was struck across the face with a beer bottle.  He sustained a cut on his right ear.  There was no indication of hearing loss or tinnitus at that time.  As such, The Board finds that the Veteran's bilateral hearing loss and tinnitus were not chronic in service.

The Board has also finds that the evidence of record does not establish any clinical manifestations of hearing loss or tinnitus to a degree of 10 percent or more within the applicable time period; as such, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied.  See 38 C.F.R. 
§ 3.307(a)(3).

The Board next finds that symptoms of bilateral hearing loss and tinnitus have not been continuous since service separation.  The Veteran first filed his claim for hearing loss and tinnitus in April 2012 and the first evidence of treatment for hearing loss is found in private treatment records dated in 2005, more than 45 years after service separation.  In a December 2016 VA audiology record, the Veteran reported having bilateral tinnitus that began "several years ago."  At that time, the Veteran did not report that his hearing loss or tinnitus began in service.  The Board finds that this long lapse of time between service separation and a diagnosis of tinnitus or hearing loss is one factor that weighs against a finding that the Veteran's bilateral hearing loss or tinnitus is related to service.  See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints).

The Board next finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed bilateral hearing loss and tinnitus are not related to active service.  The Veteran was afforded a VA examination in September 2015 and a medical opinion was obtained in June 2017.  The June 2017 VA medical opinion (conducted by the same audiologist who performed the September 2015 VA examination) stated that the Veteran was treated for a right ear laceration from being struck by a beer bottle in May 1957.  There was no report of hearing loss associated with the injury.  Service treatment reports did not show any reports of, treatment for, or diagnosis of hearing loss.  Entrance and separation evaluations indicated normal hearing via the whisper test; the examiner noted that this did not provide frequency specific information.  That notwithstanding, the examiner stated that hearing loss was not identified within 12 months of separation to a compensable degree, and thus could not be considered a presumptive condition.  Moreover, the examiner stated that the Veteran first sought medical treatment at the VAMC in 1997, but did not report hearing loss at that time.  Audiological non-VA care was provided for the Veteran in 2005, which was 48 years post military service.  Further, it was noted that during a comprehensive audiological evaluation performed by VA in December 2016, the Veteran reported intermittent bilateral tinnitus that occurred once per week that began several years ago.  The examiner explained that, as the interval between noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases.  Without systematic documentation of the tinnitus status of military personnel, it is not possible to determine whether service members have tinnitus at the time they enter or leave military service or when during military service tinnitus might have developed.  For these reasons, the examiner opined that she could not be 50 percent or more certain that the Veteran's hearing loss or tinnitus was due to or aggravated by acoustic trauma during military service.

The Board finds that the medical opinion discussed above is highly probative as to the etiology of the Veteran's hearing loss and tinnitus.  The examiner reviewed the claims file, discussed relevant medical evidence of record, and provided rationales in support of the opinions.  See Bloom, 12 Vet. App. 187; Hernandez-Toyens, 11 Vet. App. 382; Claiborne, 19 Vet. App. 186; Miller, 11 Vet. App. 348.

The Board has also considered the Veteran's statements purporting to relate his currently diagnosed hearing loss and tinnitus to in-service acoustic trauma. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of hearing loss and tinnitus. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service).  Sensorineural hearing loss and tinnitus are medically complex disease processes because of their multiple possible etiologies and manifest symptomatology that may overlap with other disorders.  Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis).  Such competent evidence has been provided by the VA audiologist who reviewed the Veteran's claims file.  Here, the Board attaches greater probative weight to the VA audiologist's opinion than to the Veteran's statements.  See Cartright, 2 Vet. App. at 25.

For these reasons, the Board finds that a preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus, and the claims must be denied.  Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied. 

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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