Citation Nr: 18131278
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 16-04 092
DATE:	August 31, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for tinnitus is denied.
FINDINGS OF FACT
1. The Veteran’s bilateral hearing loss did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease.
2. The Veteran’s tinnitus did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018).
2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service Connection
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995).
Service connection may be presumed for certain chronic diseases, to include organic diseases of the nervous system such as hearing loss and tinnitus, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2018). 
Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2018).
If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2018). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Entitlement to service connection for bilateral hearing loss and tinnitus
The Veteran asserts that he developed hearing loss and tinnitus as a result of his experiences during active service. Indeed, the Veteran asserts he was exposed to artillery and mortar fire in service. See March 2012 application for compensation. The Veteran also asserts he has had ringing in his ears since his active duty service, and currently has trouble hearing people, especially over the phone. See January 2016 Form 9. 
The Board has reviewed all the relevant evidence of record, and finds that the preponderance of the evidence weighs against the Veteran’s claim. 
The Board concedes that the first Caluza element of a current disability has been met, as the Veteran has current diagnosed bilateral hearing loss sufficient to meet VA disability standards, as well as a current diagnosis of tinnitus. See August 2014 VA examination. 
The Board also concedes that the Veteran had in-service noise exposure, meeting the second Caluza element. In so doing, the Board notes that the Veteran’s DD-214 shows that his military occupational specialty (MOS) was military policeman (95B20).  He received the Vietnam Service medal with a bronze service star and the Vietnam Campaign medal. The military policeman MOS is assigned a moderate probability of exposure to hazardous noise. See VA Fast Letter 10-35.
Therefore, the remaining pertinent element to be discussed is that of a nexus between the Veteran’s current tinnitus and hearing loss, and service.
Review of the Veteran’s service treatment records (STRs) shows that the Veteran’s June 1971 entrance audiogram reflects normal hearing bilaterally. Similarly, the Veteran’s June 1973 separation audiogram reflects normal hearing. Indeed, the Veteran’s STRs contain no complaints of hearing loss or tinnitus. In addition, the Veteran’s June 1973 separation report of medical history reflects that the Veteran reported his health to be excellent, and specifically, when asked whether he had ever or has now ear trouble or hearing loss, the Veteran marked “no.”
The first post-service evidence of complaint, diagnosis or treatment of bilateral hearing loss and tinnitus is in September 2013, 42 years after separation from service, when the Veteran requested an audiological evaluation due to difficulty hearing as well as tinnitus. The Veteran reported he had been scheduled for a VA examination, but was unable to have it done due to the presence of earwax. In May 2014, the Veteran underwent an audiological evaluation. Pure tone audiologic results were consistent with severe high frequency sensorineural hearing loss bilaterally. The Veteran requested hearing aids, and these were ordered and fitted three days later. 
An August 2014 VA audiological examination report shows that the Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. The Veteran reported difficulty hearing on the telephone and difficulty understanding speech in background noise. After physical examination and review of the claims file, the VA examiner opined that it was less likely than not that the Veteran’s hearing loss or tinnitus is related to service. The examiner noted that the Veteran had normal hearing on entrance to service and had normal hearing on his separation examination as shown by normal audiograms. The examiner added that once military noise exposure is removed, hearing would not be expected to get worse. The examiner further noted that low frequency shifts as that seen at the 500 Hz and 1000 Hz levels on separation are typically caused by cerumen or middle ear disorder, and that the Veteran’s current hearing is normal through the 2000 Hz level.   
Regarding tinnitus, the Veteran reported that he has had intermittent bilateral tinnitus occurring once a day with durations of 3 to 4 hours for the past ten years. The examiner opined that it was less likely than not that tinnitus had its onset during service or was due to military noise exposure. The examiner reasoned that the Veteran’s current hearing loss was not due to or aggravated by military noise exposure, and that the tinnitus is more likely than not associated with the hearing loss. The Veteran did not exhibit hearing loss at separation from service, and the onset of his hearing issues come a significant time after separation. 
After reviewing all the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss and tinnitus. Initially, the Board finds that presumptive service connection is not warranted as there is no evidence to show that the Veteran was diagnosed or had onset of bilateral hearing loss or tinnitus either during service or within the first year after separation from service. The Board finds it significant that the Veteran’s separation examination shows he had a normal audiological examination, and he specifically reported having no issues with his hearing on separation from service. 
The Board notes that a September 2013 post-service VA treatment record was the first evidence of the Veteran seeking treatment for hearing loss and tinnitus, which is many years post-service. Such too weighs against the claim. Maxson v. Gober, 230 F.3d 133 (Fed. Cir. 2000). Furthermore, it is by the Veteran’s own admission that his tinnitus started well after separation from service; at the August 2014 VA examination, the Veteran stated his tinnitus had its onset ten years prior, which would be in approximately 2004, more than thirty years after service separation. 
The only medical opinion to address the medical relationship, if any, between the Veteran’s bilateral hearing loss and tinnitus and active service weighs against the claim. The August 2014 VA examiner’s opinion considered all the evidence of record, to include the Veteran’s assertion that his hearing loss and tinnitus were caused by noise exposure during active service, and opined that the Veteran’s bilateral hearing loss and tinnitus were not related to service. The Board finds that this opinion constitutes probative evidence on the medical nexus question, based on a review of the Veteran’s documented medical history, assertions, and physical examination. The opinion provided a clear rationale based on an accurate discussion of the evidence of record, to include consideration of in-service and post-service noise exposure, as well as the Veteran’s lay opinions regarding the etiology of his hearing loss and tinnitus. Prejean v. West, 13 Vet. App. 444 (2000). 
Additionally, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection for bilateral hearing loss or tinnitus. VA adjudicators are not free to ignore or disregard the medical conclusions of a physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991).
The only other evidence of record supporting the Veteran’s claim is his lay statements. In that connection, the Board acknowledges the Veteran’s statements of record, yet notes the conflict between his January 2016 statement in his substantive appeal, and that reflected in his August 2014 VA examination. Specifically, while the Veteran asserted he first experienced tinnitus ten years prior to his VA examination of 2014, he stated in his substantive appeal that his tinnitus symptoms were present since his active service. As the Veteran’s statements as to the onset of his hearing issues are in conflict, the Board assigns more weight to the medical evidence of record, and specifically, to the August 2014 VA examination, which is the only competent medical opinion of record.
The Veteran can testify to that which he is competent to observe, such as symptoms denoting loss of hearing and tinnitus, but he is not competent to provide a medical diagnosis of hearing loss or to relate any symptoms of hearing loss to noise exposure in service. The Board acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). While the Veteran attributes bilateral hearing loss and tinnitus to service, it does not necessarily follow that there is a relationship between current bilateral hearing loss and tinnitus to service. 
The Board finds that the contemporaneous in-service evidence of record, as well as audiological testing considered with the August 2014 VA examination, is of more probative and persuasive value than the Veteran’s assertions. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that bilateral hearing loss and tinnitus are related to active service. As the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus, the claims must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
CAROLINE B. FLEMING
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G.C., Associate Counsel 
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