Citation Nr: 1749065	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  14-30 429	)	DATE
	)
	)
 
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

I. M. Hitchcock, Associate Counsel


INTRODUCTION

The Veteran had active military service from March 1966 to December 1967.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

This matter was previously remanded in February 2017 to obtain an updated medical opinion regarding the Veteran's claims of service-connected hearing loss and tinnitus.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDINGS OF FACT

1. There is no probative evidence that the Veteran's bilateral hearing loss had its onset in or is otherwise related to his active service.

2. There is no probative evidence that the Veteran's tinnitus had its onset in or is otherwise related to his active service.


CONCLUSIONS OF LAW

1. Service connection for bilateral hearing loss is not established.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017).

2. Service connection for tinnitus is not established.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Legal Criteria
      
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service, if they manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R.
§ 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions).  Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue.  See Jones v. West, 12 Vet. App. 460, 465 (1999).  Tinnitus is a disorder that is capable of lay-observation and the Veteran is competent to relate his post-service symptoms of tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

III. Analysis

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  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 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, supra, at 159.

A review of the record shows that the Veteran had a military occupational specialty (MOS) of a cargo handler.  As such, his claim of in-service noise exposure is presumed credible and an in-service injury of acoustic trauma is acknowledged. 

The Veteran's available service treatment records are negative for hearing loss during service.  Significantly, audiological examination reports conducted at entrance and discharge note no abnormalities. On the March 1966 entrance examination, the following audiometric data was obtained. 




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
N/A
10
LEFT
15
10
10
N/A
15


On December 1967 separation examination, the following audiometric data was obtained. 




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
N/A
5
LEFT
0
0
5
N/A
10

In his December 1967 separation report, the Veteran indicated that he did not have hearing loss.

The Veteran filed a claim for service connection for bilateral hearing loss in April 2010.  

In October 2010, the Veteran was afforded a VA audiology examination.  The Veteran reported an in-service history of noise exposure in the course of performing his MOS duties as a cargo handler that included exposure to noise from small arms and artillery fire.  The Veteran also reported a post-service history of occupational noise exposure that included working on an assembly line for approximately four years, working in a steel plant for approximately eight years, and, most recently, working as a mechanic and manager of a self-owned garage and gas station from 1980 until 2007.  Additionally, the Veteran reported a post-service history of exposure to occasional recreational noise from tractors on his farm.  The Veteran did not relate a history of hearing loss and indicated that his symptoms were more recent.  As for his tinnitus, the Veteran could not recall when the tinnitus began, only "many years ago," but he could not recall if it started in the military.   

At the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
45
65
LEFT
15
5
15
45
55

Speech audiometry using the Maryland CNC Test revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.

Notably, this report shows bilateral hearing loss pursuant to 38 C.F.R. § 3.385. A Veteran is considered competent to report symptoms of tinnitus.  See Charles supra.

The October 2010 examiner opined that it is less likely than not that the Veteran's current bilateral hearing loss and tinnitus were caused by or are the result of his military service.  In support of this opinion, the examiner noted that the Veteran's induction and separation audiograms indicate normal hearing, bilaterally.  The examiner stated that if the Veteran had sustained permanent hearing loss as a result of his military noise exposure it "should have been shown on his separation audiogram and would not be delayed in onset."

With regard to tinnitus, the Veteran reported that he could not recall exactly when his tinnitus began, but that it started many years ago.  The examiner opined that as the Veteran's separation audiogram showed normal hearing with no significant threshold shift over the Veteran's period of service, he could not relate the Veteran's tinnitus to an in-service hearing loss.

In the February 2017 remand Order, the Board assigned little probative value to the October 2010 medical opinions because the examiner used a lack of evidence showing hearing loss upon separation to support the opinions that the Veteran's current bilateral hearing loss and/or tinnitus are not related to his period of active service.  Under 38 C.F.R. § 3.385, service connection for a current hearing disability is not precluded where hearing was within normal limits at separation.  See Hensley supra at 159-60.  Furthermore, although the examiner noted the Veteran's statements concerning in-service and post-service noise exposure, the examiner did not adequately address or consider these statements or their significance in his opinion.  For these reasons, the Board found that the October 2010 opinions were inadequate and that addendum opinions were needed that fully considered and addressed the evidence of record.

The Veteran was given a second audiological examination in May 2017.  The examiner reviewed the Veteran's file and his subjective history.   The Veteran gave similar statements to this examiner as he did in October 2010.  However, regarding his tinnitus, the Veteran indicated that he first noticed tinnitus about 10-15 years ago, or between 2002-2007.  The Veteran was unsure what may have caused the tinnitus to occur.
At the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
35
60
65
LEFT
25
20
35
60
60

Speech audiometry using the Maryland CNC Test revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear.

Once again, this examination showed bilateral hearing loss and tinnitus. When comparing the Veteran's entrance and exit examinations, the May 2017 examiner noted that there were no significant threshold shifts in either ear. Further, the examiner noted that although normal hearing, by itself, is not a sufficient reason to deny service connection for hearing loss, when the Veteran's separation examination from 1967 is compared to his induction examination from 1966, there were no significant threshold shifts noted in either ear using Department of Defense criteria. Normal hearing acuity without a significant threshold shift upon separation from the service would suggest that the veteran did not suffer a noise injury to the ears while in the service. Therefore, the examiner found that it is less likely than not (less than 50 percent probability) that the Veteran's current disabling bilateral hearing loss is due to the hazardous noises the Veteran was exposed to while in the service.

Regarding the Veteran's tinnitus, the examiner again noted the lack of significant threshold shifts.  The May 2017 examiner also noted that there were no complaints of tinnitus in the service treatment records and that the Veteran reported that his tinnitus did not begin until 2002, at the earliest, or roughly 35 years after his service.  The examiner concluded that there was no strong nexus and that it is less likely than not (less than 50 percent probability) that the Veteran's current tinnitus was due to the hazardous noises the Veteran was exposed to while in service.

The Veteran's VA medical records do not contain any other pertinent opinions or lay statements about the etiology of the claimant's bilateral hearing loss or tinnitus.  There are no records documenting any treatment or complaints for either bilateral hearing loss or tinnitus.  While examinations throughout the record note that hearing is grossly intact, the Veteran specifically denied difficulties with hearing or tinnitus in May 2015.    

Based on the foregoing, the Board finds that the probative evidence of record fails to show a link between the Veteran's in-service noise exposure and his current bilateral hearing loss or tinnitus.  As above, the May 2017 VA examiner reviewed the claims file, interviewed the Veteran, and performed an audiological examination.  The examiner specifically noted the Veteran's normal audiological evaluations during service, his history of noise exposure both during and after service, and opined that it was less likely than not that hearing loss is related to military service.  Further, the examiner noted that the Veteran reported that his tinnitus did not begin until 35 years after his service.

The Board accords great probative weight to the May 2017 VA examiner's opinion regarding the Veteran's bilateral hearing loss and tinnitus as it is predicated on an interview with the Veteran, a detailed review of his records, including his in-service audiological examinations, and current audiometric examinations.  The May 2017 VA examiner's opinion, along with the explanation that the configuration of the Veteran's hearing loss was not consistent with typical noise-induced hearing loss, sufficiently addresses the potential link between any present hearing loss and service and contains clear conclusions with supporting data, as well as a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  There is no contrary medical opinion of record. 

The Board notes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation.  See Hensley supra.  However, the examiner's opinion did not solely rest on these findings: the examiner discussed the claimant's history and explained the significance of threshold shifts.  Therefore, the examiner's opinion is given great probative weight.

The Board notes that the Veteran has contended on his own behalf that his bilateral hearing loss and tinnitus is related to his military service.  Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise.  See Layno supra, at 470.  Lay evidence may also be competent to establish medical etiology or nexus.  Davidson, 581 F.3d at 1316.  However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to."  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 

In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's bilateral hearing loss and tinnitus and any instance of his military service, to include his exposure to noise, to be complex in nature.  See Woehlaert, supra.  Therefore, while the Veteran is competent to describe his in-service noise exposure and his current audiological problems, he cannot, as a layperson, provide competent medical evidence establishing a connection between his current hearing loss and tinnitus and his in-service noise exposure.  Moreover, he has offered only conclusory statements regarding the relationship between his in-service exposure to noise and his current bilateral hearing loss and tinnitus.  

Therefore, as the VA examiner possesses the expertise necessary to identify the relevant factors to consider in assessing causality and provided an opinion in consideration of all of the relevant evidence, the Board accords great probative weight to this opinion.  As such, it is not outweighed by the lay opinion asserted by the Veteran. 

The Veteran has not stated that his bilateral hearing loss has continued since service nor that it is delayed in onset.  As such, presumptive service connection, to include on the basis of continuity of symptomatology is not warranted for bilateral hearing loss.  The Veteran is competent and credible to give symptoms of tinnitus. See Charles supra.  However, the Veteran has given conflicting information about the onset of tinnitus.  In his October 2010 examination, he reported that his tinnitus started many years ago.  However, in his May 2017 examination, he gave a more specific response: that it started (at the earliest) in 2002.  The Board gives more probative weight to the May 2017 statement because it is more specific.  Given this, the Board finds that the Veteran's tinnitus is not established under continuity of symptomology because there has not been a continuity of symptomology since service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra.

Based on the foregoing, the Board finds that service connection is not warranted for either bilateral hearing loss or tinnitus.  In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  Given that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.



____________________________________________
L. M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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