Citation Nr: 18154200
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 17-16 459
DATE:	November 29, 2018
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
FINDINGS OF FACT
1. There is no probative medical evidence that indicates the Veteran has a current diagnosis of bilateral hearing loss.
2. There is no probative medical evidence that indicates the Veteran’s current tinnitus was incurred in service, diagnosed within the presumptive period after service, or demonstrated a continuity of symptoms after service.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 1131, 1132, 5107 (b) (West 2014); 38 C.F.R.           §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).
2. The criteria for service connection for tinnitus have not been satisfied. 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from August 1953 to August 1973.
Duty to Notify and Assist
All necessary assistance to obtain evidence has been provided. As to the claims decided, there is no probative evidence suggesting the claimed conditions are related to service. Rather, only the Veteran’s general conclusory statement that his claimed disabilities are related to service is of record, which is insufficient to entitle a veteran to a medical examination under 38 U.S.C. § 5103A (d) (2) (B). Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (observing that “[s]ince all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case”). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).
VA has satisfied its duty to notify and assist and the Board may proceed with appellate review.
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).
Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309 (a) and 38 C.F.R.           § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus, as “organic” diseases of the nervous system, are “chronic” listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b).
Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss or tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id.
In deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about 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). 
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377.
In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
1. Entitlement to service connection for bilateral hearing loss
Service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  See Hensley v. Brown, 5 Vet. App. 155 (1993).
The Veteran contends he has hearing loss due to acoustic noise exposure during his service in Vietnam. The Veteran’s military occupational specialty (MOS) was as a supply sergeant, and he reported that his office was near the flight line for out-going missions. He also reported that he witnessed incoming and outgoing mortar attacks, and contends his service in Vietnam constitutes combat for VA purposes.
Under 38 U.S.C. § 1154 (b), there is a relaxed evidentiary standard for proving the onset or aggravation of an injury or disease during combat. Generally, VA will accept as true a combat veteran’s report of injury or disease in service, as long as the report is consistent with the circumstances, conditions, or hardships of such service, and in the absence of evidence to the contrary. See 38 C.F.R. §§ 3.304 (d). Participation in combat is a determination that is to be made on a case-by-case basis, and it requires that a Veteran have “personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.” See Sizemore v. Principi, 18 Vet. App. 264 (2004); VAOPGCPREC 12-99 (October 18, 1999). Certain decorations are evidence of combat participation. See M21-1 IV.ii.1.D.1.e for list of such decorations. However, receipt of a decoration is not the only acceptable evidence of engagement. Service in a combat zone or a particular military occupational specialty, alone, is not sufficient to establish that a Veteran “engaged in combat with the enemy” so as to qualify for the presumption based on combat service.
The Veteran’s contentions do not substantiate that he was a combat veteran for VA purposes. He does not contend that he personally participated in any hostilities, only that he heard and witnessed mortar attacks at bases where he conducted inventory, and artillery fire support while on route to these bases. The Veteran does not have any combat medals for his service in Vietnam. Thus, the Veteran’s contentions are not sufficient to establish that his service in Vietnam warrants combat designation.
In addition, the Veteran’s MOS is not one that would suggest a high probability of acoustic trauma. Although the Veteran contends he was exposed to the loud noises of military aircraft while he performed his duties, such a contention alone does not constitute a sufficient basis to determine noise exposure. There are no complaints, diagnoses, or treatments for hearing loss in service, and service treatment records (STRs) indicate the Veteran’s hearing was within normal limits throughout service. His June 1970 audiological examination indicated hearing within normal limits, and his July 1973 audiological examination at retirement indicated “hearing acuity within normal limits,” with no significant threshold shift when compared to his June 1970 results. The lack of a significant threshold shift suggests a low probability of acoustic trauma. The Veteran’s noise exposure is not substantiated and the Veteran’s contentions do not warrant a VA medical examination. 
There is no probative medical evidence that indicates the Veteran has a current diagnosis of sensorineural hearing loss. Without a current disability, there can be no claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof of a present disability there can be no valid claim.”)
Since the Veteran does not demonstrate a current hearing loss disability, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 
2. Entitlement to service connection for tinnitus
Tinnitus is defined as a ringing in the ears, and it is a disorder that is uniquely identifiable by the senses of the person experiencing it. It is a condition that is “simple” in nature in that respect, and thus, is a disability that can be diagnosed by the person experiencing the condition.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). That is, the confirmation of the existence of tinnitus does not require any particular medical expertise (i.e. is not “complex” in nature), and assuming the allegations of the Veteran are credible, testimonial evidence of an origin of the condition in service can be used to support a claim for service connection.
The Veteran contends he currently has tinnitus. The Veteran is competent to report a current diagnosis. 
However, STRs do not indicate any complaints of tinnitus or ringing in the ears. At his June 1962 and June 1970 reports of medical history at reenlistment, the Veteran denied “running” ears. As noted above, STRs do not indicate a significant threshold shift in the Veteran’s hearing, suggesting a low probability of acoustic trauma. In addition, there are no probative medical records that demonstrate a continuity of symptoms since service. Thus, the Veteran’s contentions that his current tinnitus was incurred in service are not credible and do not warrant a VA medical examination. 
The preponderance of the evidence is against finding service connection for tinnitus. There is no probative medical evidence that indicates the Veteran’s current tinnitus was incurred in service, diagnosed within the presumptive period after service, or demonstrated a continuity of symptoms after service. 
Since the Veteran’s current tinnitus was not incurred in service, the claim for service connection is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

 
Vito A. Clementi
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Anwar, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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