Citation Nr: 18154210
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 14-38 019
DATE:	November 29, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for tinnitus is denied.
REMANDED
Entitlement to a rating higher than 10 percent disabling for a cervical spine disability is remanded.
FINDINGS OF FACT
1. A bilateral hearing loss disability was not manifest in service, an organic disease of the nervous system did not become manifest to a compensable degree during the one-year period following release from service, and it is not otherwise attributable to service.
2. Tinnitus was not manifest in service, an organic disease of the nervous system did not become manifest to a compensable degree during the one-year period following release from service, and it is not otherwise attributable to service.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).
2. The criteria for entitlement to service connection for tinnitus have not been met.  38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty served on active duty in the U.S. Army from February 1988 to April 1997. He had additional service in the Army National Guard.
Service Connection
The Veteran appeals the denial of service connection for a bilateral hearing loss disability and tinnitus. The Veteran reports exposure to random mortar fire, enemy and friendly fire, aircraft, M16, M60, grenade launchers, M249, training grenades, flash bang grenades, 45, 9mm, generators and heavy equipment during service. He also reports in service noise exposure from repairing helicopters.
Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131.  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). Certain chronic diseases, such as an organic disease of the nervous system, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
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.
After review of the evidence, the Board finds against the claims for service connection for a bilateral hearing loss disability and tinnitus. To that end, although in service evaluations show a threshold shift in the right ear at 500 Hertz, service treatment records show normal ears and hearing during service. The March 1997 separation examination also disclosed normal findings for the ears and normal hearing for VA rating purposes. At that time, the Veteran indicated that he did not know if he had hearing loss or not.  The Board further notes that an organic disease of the nervous system is not shown within one year after separation from active duty.
The Board has reviewed the service examination reports, VA medical records, the VA examinations and private treatment records of file. These records do not include any opinion linking the current hearing loss disability and/or tinnitus to service. There is no competent evidence or opinion that the Veteran’s disabilities are related to his service and neither the appellant nor his representative has presented any such opinion. 
Rather, during the January 2013 VA examination, the Veteran reported noticing hearing difficulties in the 1990s. The VA examiner, while acknowledging a threshold shift at 500 Hertz in the right ear during service, opined that his hearing loss was not at least as likely as not related to service. The VA examiner reasoned that hearing loss due to acoustic trauma is immediate not progressive per medical research. According to the 2002 American College of Occupational and Environmental Medicine Position Statement on Noise-Induced Hearing loss, she stated that scientific research indicates that hearing loss due to noise does not progress beyond age-related changes once the exposure to noise is discontinued. The VA examiner also opined that the Veteran’s tinnitus was less likely than not caused by in service noise exposure. She noted that “No nexus re: military service and tinnitus. Onset unknown. Tinnitus seldom occurs per Veteran.”
In August 2018, Dr. B expressed that he concurred with the opinion of the January 2013 VA examiner. He noted that the pure tone configuration of the Veteran’s hearing tests and the compensation and pension audiogram did not reflect the typical first sign of hearing loss due to noise exposure which is a notching of the audiogram at 3,4, or 6kHz with recovery at 8kHz as stated by the American College of Occupational and Environmental Medicine. Further, the 2006 Institute of Medicine, National Academy of Sciences study “Noise and Military Service – Implications for Hearing Loss and Tinnitus” stated that there is no evidence, based on current understanding of cochlear physiology, for the existence of delayed-onset hearing loss. These findings he stated are also supported by the American College of Occupational and Environmental Medicine (Rosenhall, U. et. al. Presbycusis Noise-Induced Hearing Loss. Ear and Hearing. 1990; 11(4):257-63). Therefore, he opined that the Veteran’s present hearing loss is less likely as not due to his military noise exposure.
Regarding the Veteran’s tinnitus, the examiner stated that during the Veteran’s January 2013 VA examination he was asked when he first noted tinnitus, his response was non-specific. However, Dr. B stated that the Veteran described the tinnitus as seldom occurring once every 3-4 months. He also noted that the Veteran did not report tinnitus during his post-deployment assessments in February 2006 and January 2010. Further, Dr. B stated that the National Center for Rehabilitative Auditory Research recognizes tinnitus as ear noise that last for at least 5 minutes and occurs at least twice a week. He noted that the Veteran’s statement made during his VA examination does not meet the definition of tinnitus. Therefore, he opined that the Veteran’s current tinnitus was less likely as not due to military noise exposure. He lastly noted that the Veteran’s earliest report of tinnitus occurred 13 years after leaving active duty.

The Board finds that the opinion of the January 2013 VA examiner in conjunction with the August 2018 opinion of Dr. B are persuasive and the Board assigns them greater probative weight than the lay statements of record. The opinions were rendered by medical professionals with the expertise to opine on the matter at issue in this case. The examiners considered the Veteran’s description of noise exposure in service and based the opinions on a review of the claims folder to include consideration of the service treatment records, and the nature and extent of the Veteran’s current disabilities. The opinions are consistent with the historical record and the Board finds no factual inaccuracies.
The more probative evidence of record is against a showing that the Veteran has a bilateral hearing loss disability and/or tinnitus that is related to his service. In making this decision, the Board notes that the Veteran is competent to report decreased hearing and ringing in his ears, and the circumstances surrounding such.  Although lay persons are competent to provide opinions on observable lay symptoms or conditions, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case—the etiology of his hearing loss disability and tinnitus—falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  The Board finds that together the opinions of the January 2013 VA examiner and Dr. B are far more probative and persuasive as to the etiology of the Veteran’s disabilities.  
To the extent that the Veteran alleges that his hearing loss started in service and has continued since that time, the Board finds that his current recollections are inconsistent with his in-service statements. To that end, although in his claim for compensation he reported tinnitus and hearing loss that started in January 1991, he specifically denied hearing loss and ear trouble in January 1994 and November 1994. In the March 1997 separation examination, the Veteran reported that he did not know if had or ever had hearing loss. He also denied ringing of the ears during his September 2006 evaluation. 
The Board places greater probative weight to the Veteran’s denial of symptoms during service as these statements were made closer in time to the time period in question and bear the indicia of reliability as they were made in the context of seeking appropriate medical evaluation during service. See Lilly’s An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds the in service statements more credible and reliable than recollections made many years after service. 
It is also noted that the Veteran’s perception of decreased hearing acuity since service does not adequately support a finding of actual sensorineural hearing loss disability being first manifested in service or within one year of service discharge as the existence of a “disability” is specifically defined at 38 C.F.R. § 3.385 in terms of specific levels of tone threshold perceptions and speech recognition which is beyond lay competence to measure.  McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016).  In short, the Veteran’s recollections of decreased hearing acuity since service is not capable of showing it rose to the level of a “disability” for VA purposes in service, or to a ratable level of disability within one year of service discharge.  The Veteran also does not report the onset of tinnitus in service.
As such, an award of benefits based upon continuity of symptomatology under 38 C.F.R. § 3.303(b) is not warranted. Furthermore, there is insufficient evidence to demonstrate manifestations of an organic disease of the nervous system to a compensable degree within one year of service discharge. See 38 C.F.R. §§ 3.307, 3.309.
In sum, the most probative evidence of record preponderates against a finding that the Veteran’s bilateral hearing loss disability and/or tinnitus are related to service.  The Board has considered the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable.  38 U.S.C. § 5107.
REASONS FOR REMAND
Entitlement to an initial rating higher than 10 percent for a cervical spine disability is remanded.
The Veteran appeals the denial of an initial rating higher than 10 percent for his service connected cervical spine disability. In relation to his claim, the Veteran was last examined in January 2013. In April 2015, the Veteran’s representative indicated that the Veteran’s disability has worsened since his last VA examination. 
Since the last VA examination, the Board also notes that the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In light of the above, the Board has no option but to remand the appeal for further development. On remand, any outstanding VA and/or private treatment records should be obtained.  
The matter is REMANDED for the following action:
1. Update for the record all relevant private and VA treatment records. 
2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected cervical spine disability.  The electronic file must be made available to the examiner for review.  In accordance with the latest worksheets for rating the cervical spine, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of his disability.
In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner should describe whether pain, weakness, fatigue, and/or incoordination significantly limits functional ability during flare-ups or with repetitive use, and if so, the examiner should express that functional loss in terms of loss in range of motion.  If the examination does not take place during a flare-up, the examiner should have the Veteran describe and/or demonstrate the extent of loss in range of motion during flare-ups or with repetitive use and should estimate the extent of such loss in range of motion in terms of degrees.  If there is no pain and/or no limitation of function, such must be noted in the report.
Also, in order to comply with the decision in Correia, the VA examination report must include range of motion testing in the following areas:
• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-bearing.
Range of motion findings reported in degrees must be provided in the examination report.  The degree at which pain begins must be documented.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
The examiner should further provide a full description of the manner and extent to which the Veteran’s cervical spine disability impacts functions relating to physical and sedentary employment. 
Additionally, the examiner should identify any neurologic complications, if any.
A complete rationale should be supplied for any opinions provided.
3. Thereafter, consider all of the evidence of record and readjudicate the issue on appeal considering the propriety of separate ratings under all potentially applicable diagnostic codes for the cervical spine.  If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative.

 
T. MAINELLI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T.S. Willie 

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