Citation Nr: 18160585
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 17-01 839
DATE:	December 28, 2018
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
FINDINGS OF FACT
1. A bilateral hearing loss disability was not manifest during service or within one year of separation. Bilateral sensorineural hearing loss disability is not attributable to service.
2.  Tinnitus is not attributable to service.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 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, 1154 (2002); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1967 to September 1969.
This matter was before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the RO. 
This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.
Service Connection
Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 
In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic disease of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.
That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, organic disease of the nervous system is a chronic disease.  38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable.
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). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
1. Entitlement to service connection for bilateral hearing loss and tinnitus
Specific to claims of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017).
The Veteran asserts that noise exposure in service from truck noise, mortar attacks and helicopter noise caused his bilateral hearing loss disability and tinnitus. 
The July 1967 pre-induction examination showed that the Veteran’s puretone thresholds, in decibels, were as follows (note ASA to ISO-ANSI conversion):		
		HERTZ			
	500	1000	2000	3000	4000
RIGHT	25	15	10	/	5
LEFT	25	10	20	/	10
The June 1969 separation examination showed that the Veteran’s puretone thresholds, in decibels, were as follows:
		HERTZ			
	500	1000	2000	3000	4000
RIGHT	0	0	0	0	0
LEFT	0	0	15	15	0

The service treatment records show no complaints or findings of hearing loss disability.
However, that the absence of in-service evidence of hearing loss disability is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  
A July 2015 VA audiology consult treatment record reflects that the Veteran received treatment for decreased bilateral hearing. The Veteran reported that he had experienced hearing loss for at least five years and complained that he had difficulty hearing. There was no history of otologic disorder or family history of hearing loss. The Veteran did not have reports of tinnitus or vertigo. He was not a previous hearing aid user. Objectively, pure tone audiometry results revealed mild sloping to severe, profound bilateral sensorineural hearing loss.
A February 2016 VA audiology record reflects that the Veteran returned for hearing aid followup treatment. He reported that had extreme difficulty hearing bilaterally, left ear worse than the right ear. He reported that he had been experiencing the extreme difficulty hearing for approximately three to four weeks. The Veteran’s hearing aids were reprogrammed.
In March 2016, the Veteran underwent a VA audiological examination which showed that the Veteran’s puretone thresholds, in decibels, were as follows:		
		HERTZ			
	500	1000	2000	3000	4000
RIGHT	55	70	70	90	105+
LEFT	35	60	70	70	80

Speech audiometry revealed speech recognition ability of 44 percent in the right ear and 56 percent in the left ear. Thus, he demonstrated bilateral hearing loss disability for VA purposes. 
The audiologist noted there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 hertz in the right or left ears. The audiologist opined that the Veteran’s right and left ear hearing loss was not at least as likely as not caused by or a result of an event during the Veteran’s period of service. The audiologist noted that service enlistment examination, Bekesey tracing and separation examination all showed normal pure tone thresholds at 500 through 6000 hertz bilaterally with no shift in hearing. The audiologist concluded that there was no evidence of hearing loss during the Veteran’s period of military service. 
The audiologist explained that in an Institute of Medicine (IOM), National Academy of Sciences 2006 article, the IOM concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. The IOM did not rule out that delayed onset might exist but concluded, based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. Thus, the audiologist opined that the Veteran’s hearing loss was not due to or the result of his period of military service. 
Regarding his tinnitus, the Veteran complained of recurrent bilateral tinnitus that onset over 20 years earlier. The Veteran did not recall a specific incident of onset. The audiologist noted that the Veteran had a diagnosis of clinical hearing loss and opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with the hearing loss as tinnitus was known to be a symptom associated with hearing loss.
The audiologist opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The audiologist noted that the service treatment records showed normal pure tone thresholds at 500 through 6000 hertz bilaterally with no shift in hearing. The audiologist determined that there was no evidence of hearing loss or complaint of tinnitus during the Veteran’s period of service. The audiologist concluded that given that the Veteran did not experience hearing loss and/or a shift in hearing during his period of service, his tinnitus was not due to military noise exposure.
Though the Veteran has current bilateral sensorineural hearing loss and tinnitus, the preponderance of the evidence is against a finding of a linkage between the onset of the disabilities and a period of service. Rather, the evidence shows that the Veteran’s current bilateral hearing loss disability had no etiological relationship to in-service noise exposure. The audiologist in March 2016 noted that the service treatment records documented normal hearing bilaterally without shift in hearing and explained that based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. Thus, the Veteran’s hearing loss was not due to or the result of his period of military service.
The Veteran’s tinnitus was at least as likely as not a symptom associated with his hearing loss. Given that the Veteran did not experience hearing loss and/or a shift in hearing during his period of service, his tinnitus was not due to military noise exposure (see March 2016 report of VA examination).
There is no competent evidence or opinion that suggests that there exists a medical relationship, or nexus, between any current hearing loss disability and tinnitus and a period of the Veteran’s service.
Additionally, there is no evidence of sensorineural hearing loss disability in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1339. No examiner in service, or since, has established chronicity or an underlying chronic disease process in service. In sum, characteristic manifestations sufficient to identify the disease (other organic disease of the nervous system) entity were not noted.  Further, there is no demonstration of continuity of symptomatology or evidence of sensorineural hearing loss disability within one year of separation from service. Thus, service connection cannot be awarded on a presumptive basis. 38 U.S.C. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309.
The Veteran is not competent to link his bilateral hearing loss disability or tinnitus to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:
(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);
(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. 
Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran’s death).  
The Veteran is competent to state that he sustained in-service noise exposure. However, he is a lay person and is not competent to establish that his current bilateral hearing loss or tinnitus disabilities onset as a result of any in-service-noise exposure. The Veteran is not competent to offer an opinion as to etiology of any current bilateral hearing loss or tinnitus disabilities. The question regarding the etiology of such a disability is a complex medical issue that cannot be addressed by a layperson. For these reasons, his allegations are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. 
The claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus must be denied. The preponderance of the evidence is against the claims and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 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	G. Jackson, 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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