Citation Nr: 18160594
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-19 024
DATE:	December 27, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for tinnitus is denied.
REMANDED
Entitlement to service connection for neuropathy, claimed as due to exposure to herbicides is remanded.
FINDINGS OF FACT
1. The Veteran’s bilateral hearing loss did not begin during service, was not manifest within one year of separation from service, and was not otherwise caused by his active service.
2. The Veteran’s tinnitus did not begin during service, was not manifest within one year of separation from service, and was not otherwise caused by his active service.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309.
2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service in the Army from December 1966 to November 1968, to include service in the Republic of Vietnam.
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.
Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).
Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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; 38 C.F.R. §§ 3.307, 3.309(a). Although 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.
The Veteran’s military noise exposure is not at issue, as noise exposure has been conceded by the regional office (RO); however, for service connection to be warranted it must be shown that such military noise exposure caused the disability.
For the purposes of applying VA laws, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 
The Veteran’s STRs show that at his entrance examination in December 1966, audiological test results were as follows:
Hertz
	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
Right	10	0	0	N/A	0
Left	5	0	0	N/A	10

The STRs also show that no audiometric testing was performed during the Veteran’s December 1968 separation examination. 
The Veteran’s STRs contain no complaints, symptoms, treatment, or diagnosis of bilateral hearing loss or tinnitus; however, STRs dating from November 6, 1968, to November 26, 1968 show that the Veteran was treated for otitis media, which had mostly resolved as noted in the STR dated November 26, 1968. 
In July 2014, the Veteran was afforded a VA examination. The Veteran reported noise exposure during his active service that included exposure to weapons fire during basic training and noise exposure from his military occupational specialty as a wheeled vehicle mechanic. Audiological testing showed bilateral hearing loss for VA purposes. After reviewing the Veteran’s claim’s file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not due to his active service. The examiner reported that the Veteran’s hearing was within normal limits at his entrance and that the Veteran reported during the examination that he had problems with his hearing at separation. The examiner also reasoned that the Veteran reported during the examination that he first noticed problems with his hearing approximately two years prior to the examination.  The examiner also reasoned that the Veteran reported a complete history of noise exposure that included 35 years as a diesel mechanic after leaving service. As for tinnitus, the examiner opined that the Veteran’s tinnitus was not related to his military service because the Veteran reported the onset of his tinnitus four or five years prior to the examination. The examiner also reasoned that the Veteran had a 35-year history as a diesel mechanic that is more likely to contribute to his current tinnitus than noise exposure in service with a delayed onset of approximately 30 years. 
In a May 2015 addendum opinion, the examiner opined that the Veteran’s bilateral hearing loss is not related to his otitis media during service. The examiner reasoned that hearing loss caused by otitis media would cause conductive hearing loss or mixed hearing loss and would most likely affect the low-test frequencies. The examiner explained that the sensorineural hearing loss diagnosed at the July 2014 VA examination is not found in cases involving otitis media. 
Regarding the Veteran’s bilateral hearing loss, it is not disputed that he now has hearing loss for VA purposes. It is also not disputed that the Veteran experienced military noise exposure during his active service; however, military noise exposure alone is not considered to be a disability, rather, when sensorineural hearing loss is first documented more than a year after service separation, it must be shown that the hearing loss was caused by the military noise exposure. Although the audiometric testing was not conducted at separation, the Veteran reported at his July 2014 VA examination that he had no hearing problems at separation and that he first noticed hearing problems in approximately 2012, which is 44 years after service. The Board finds the greatest probative value in the July 2014 VA examiner’s opinion and the May 2015 addendum opinion. Notably, the Veteran has not submitted any evidence, beyond his own assertions, supporting his contention that his bilateral hearing loss was due to his military service.
Consideration has been given to the Veteran’s assertion that his bilateral hearing loss was due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral hearing loss, falls outside the realm of common knowledge of a lay person. Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
That is, although the Board readily acknowledges that Veteran is competent to report difficulty hearing, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating audiological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value in the determination of the etiology of the Veteran’s bilateral hearing loss.
Regarding tinnitus, the Veteran’s STRs are silent for any complaints or diagnoses of tinnitus through his separation in 1968. At the July 2014 VA examination, the Veteran reported the onset of his tinnitus approximately four or five years prior to the examination, which is roughly 45 years after separation from active duty service. Additionally, the Veteran also noted a 35-year career as a diesel mechanic that consisted of considerable noise exposure after service. Based on the foregoing, it is not shown that the Veteran’s tinnitus had its onset in service or within one year of his separation of service. Therefore, it is also not shown that the Veteran has had tinnitus continuously since service. The Veteran has not submitted any competent (medical) opinions to the contrary.
The Board acknowledges that the United States Court of Appeals for Veterans Claims has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation, and that lay testimony may provide sufficient support for a claim of service connection; however, the Veteran has not asserted that he first noticed tinnitus in service or within one year of service separation. As noted above, the Veteran has instead reported that the onset of his tinnitus was approximately four or five years prior to his July 2014 VA examination. As such, the weight of the evidence is against a finding that the Veteran’s tinnitus either began during or was otherwise caused by his military noise exposure.
Accordingly, the criteria for service connection for bilateral hearing loss and tinnitus have not been met, and the Veteran’s claims are denied.
REASONS FOR REMAND
1. Entitlement to service connection for neuropathy, claimed as due to exposure to herbicides is remanded.
The Veteran has asserted that his neuropathy is due to active service, to include exposure to herbicide agents such as Agent Orange.
The Board acknowledges the September 2014 private opinion letter from Dr. A.C. who opined that it is likely that Agent Orange likely played a role in the Veteran’s neuropathy. Dr. A.C. reasoned that the Veteran is not diabetic and has never had chemotherapy or back injuries; however, the opinion does not provide any further supporting rationale. Accordingly, an additional opinion is needed. Relevant ongoing medical records should also be requested.
The matter is REMANDED for the following action:
1. Ask the Veteran to provide completed release forms with the names and addresses of any medical care providers who have treated him for his neuropathy. After securing the necessary release, request any relevant records identified. Ongoing VA treatment records should also be requested. If any requested records are not available, the Veteran should be notified of such.
2. After records development is completed, send the claims file to a VA neurologist to obtain an opinion on the claims for service connection. If an examination is deemed necessary to respond to the questions presented one should be scheduled. 
Following review of the claims file and examination of the Veteran, the neurologist should provide an opinion as to whether it at least as likely as not (50 percent or greater probability) that the Veteran’s neuropathy is etiologically related to the Veteran’s service, to include exposure to herbicide agents. The examiner should explain the reasons for the conclusion reached. Although the neurologist is free to cite to studies by the National Institute of Health or any medical treatises in rendering the opinions, the rationale cannot rely solely on the fact that VA has not included myositis or polyneuropathy in the list of presumptive conditions.

 
JAMES L. MARCH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Hammad Rasul, Associate Counsel 

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