TINNITUS

Summary

The veteran, who served from December 1978 to December 1982 as an Aircraft Maintenance specialist, appeals the denial of service connection for low back strain and bilateral hearing loss, and seeks service connection for tinnitus and a mental condition secondary to his back disability. The Board granted service connection for tinnitus, finding the evidence in equipoise and applying the benefit of the doubt. The veteran testified to experiencing tinnitus shortly after service due to noise exposure, and while service treatment records were negative and a VA examiner gave a negative nexus opinion, the Board found the veteran's lay testimony credible and consistent with the chronic disease presumption for tinnitus. Service connection for low back strain was denied. While the veteran had an in-service injury and sought service connection, the Board found the VA examiner's opinion, which noted a lack of treatment for 27 years and attributed current symptoms to civilian employment, to be more probative than the veteran's lay statements. Bilateral hearing loss was also denied. The Board acknowledged the veteran's MOS had high noise exposure potential and that the veteran had normal hearing at separation, but found the VA examiner's negative nexus opinion, based on objective audiometric data and lack of delayed onset support, to be the most probative evidence. The claim for a mental condition secondary to the back disability was denied because service connection for the underlying back condition was denied. The Board found the evidence weighed against service connection for the back and hearing loss claims, and therefore the benefit of the doubt did not apply.

Rationale

Service records noted MOS as Aircraft Maintenance with high probability for noise exposure.; Veteran's lay testimony regarding tinnitus onset within one year of service found credible.; Chronic disease presumption for tinnitus applies due to onset within one year of service.

Full Decision Text

Citation Nr: A24037701
Decision Date: 07/12/24	Archive Date: 07/12/24

DOCKET NO. 210309-145397
DATE: July 12, 2024

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to service connection for service connection low back strain is denied.

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for a mental condition, to include depression and sleep disturbance as due to low back strain, is denied.

FINDINGS OF FACT

1. The evidence is in equipoise as to whether the Veteran's tinnitus is etiologically related to his military noise exposure.

2. The most probative evidence weighs against finding that the Veteran's low back strain is related to service.

3. The most probative evidence weighs against finding that the Veteran's current bilateral hearing loss is related to active service, including in-service noise exposure.

4. The weight of the evidence indicates the Veteran does not have depression that is proximately due to or aggravated by a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral tinnitus have been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for service connection for low back strain are not met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.

4. The criteria for service connection for an acquired psychiatric disability, to include depression and sleep disturbance are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1978 to December 1982.

In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or his or her representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).

The Veteran submitted sworn testimony before the undersigned Veterans Law Judge during a January 2024 virtual Board hearing.  A transcript is of record.

1. Entitlement to service connection for tinnitus.   

The Veteran seeks service connection for tinnitus.  Specifically, the Veteran testified that he experienced ringing in his ears within a year of separation from service.  See January 2024 Hearing Transcript at 33; see also September 2015 hearing loss and tinnitus VA examination.

First, the Board concludes that in accordance with the AOJ's favorable finding, the Veteran has been diagnosed with tinnitus based on the September 2015 VA examination.  

Secondly, the Board concludes that in accordance with the AOJ's favorable finding, the evidence showed that a qualifying event, injury, or disease had its onset during service. Service records noted the military occupation specialty (MOS) as Aircraft Maintenance, which has a high probability for noise exposure.  The Board is bound by these favorable findings.  See AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07.

Third, the Board finds that the evidence of onset within a year of separation from service is both competent and credible. Service treatment records are negative for complaints, diagnosis, or treatment of tinnitus from noise exposure.  Moreover, the Veteran's September 2015 VA examiner opined that the Veteran's tinnitus is less likely than not related to his service.  However, that opinion was primarily based on the Veteran noticing bilateral tinnitus symptoms shortly after leaving service.  Here, the Board observes that the Veteran, as a lay person, is competent to report observable symptomatology of an injury, to include tinnitus.  Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  Even if it was not reported to in-service medical personnel, the Veteran testified to tinnitus after exposure to hazardous noise in service. The negative nexus opinions were based on the Veteran
 or treatment of tinnitus from noise exposure.  Moreover, the Veteran's September 2015 VA examiner opined that the Veteran's tinnitus is less likely than not related to his service.  However, that opinion was primarily based on the Veteran noticing bilateral tinnitus symptoms shortly after leaving service.  Here, the Board observes that the Veteran, as a lay person, is competent to report observable symptomatology of an injury, to include tinnitus.  Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  Even if it was not reported to in-service medical personnel, the Veteran testified to tinnitus after exposure to hazardous noise in service. The negative nexus opinions were based on the Veteran's failure to report tinnitus symptoms in-service and did not give due consideration to the Veteran's lay statements regarding symptoms. The Board finds more probative the Veteran's direct statements, indicating that tinnitus shortly after service and continuing since that time.  The Veteran is competent to testify that he experienced ringing in his ears within one year of separating from service and has experienced ringing in his ears ever since service.  Charles v. Principi, 16 Vet. App. at 374.  As a result, the Board concludes that the testimony of onset of tinnitus within one year of separation from service is credible.

Tinnitus qualifies as an other organic disease of the nervous system for the purpose of the chronic disease presumption. 38 C.F.R. § 3.309(a). Therefore, because the Veteran's tinnitus had its onset within one year of service, the presumption of service connection applies. 38 C.F.R. § 3.307(a)(3). Service connection for tinnitus is granted.

2. Entitlement to service connection for low back strain.

The Veteran asserts that he is entitled to service connection for a low back disability that began during service and has been recurrent since that time.  See January 2024 Hearing Transcript.  

First, the Board concludes that in accordance with the AOJ's favorable finding, the Veteran has been diagnosed with low back strain based on the December 2009 VA examination.

Second, the Board concludes that in accordance with the AOJ's favorable finding, the evidence shows that a qualifying event, injury, or disease had its onset during service.  Service treatment records note a back injury on October 21, 1981.

Third, the Board finds that there is no nexus to service. The Veteran was afforded a VA examination in December 2009.  The examiner opined that it is less likely than not that the Veteran's current low back strain is related to the back strain that the Veteran had during service.  The examiner reasoned that there was no record of any treatment between 1981 and 2008.  The examiner reasoned that the Veteran's low back strain during military service was most likely self-limited and no longer present after the military.  The examiner opined that the Veteran's current low back strain is most likely due to working 28 years as a mechanic.  The examiner cited the Veteran's medical records from May 2008, which stated, "the work he does as an auto tech exacerbates his pain. Pain began gradually 1 year ago." The Board finds this statement to be especially probative because statements made to a clinician for the purpose of treatment are especially trustworthy because the patient is incented to provide accurate history in order to receive proper medical care.

The Board finds the December 2009 VA opinion finding no connection between the Veteran's bilateral hearing loss and active service to be the most probative evidence of record. The examiner reviewed and cited to the contemporaneous medical and lay evidence from the Veteran's service treatment records. The examiner demonstrated a detailed understanding of the Veteran's medical history and medical records, and the opinion is supported by an explanation. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). There is no competent medical evidence to the contrary.

The Board has not overlooked the Veteran's statements and testimony that his current low back strain is related to service, to include an October 1981 note of an injury in service.  As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, i.e., pain and numbness (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (
 21 Vet. App. 120, 123-24 (2007). There is no competent medical evidence to the contrary.

The Board has not overlooked the Veteran's statements and testimony that his current low back strain is related to service, to include an October 1981 note of an injury in service.  As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, i.e., pain and numbness (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009).  The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues.  Thus, his lay assertions do not constitute medical nexus evidence upon which service connection can be granted.  The Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by the December 2009 VA examiner based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale.  The statement by the Veteran that his low back disorder is due to an October 1981 injury during service is outweighed by the opinion of the VA examiner in December 2009.

For the above reasons, the evidence of record persuasively weighs against finding that the Veteran's low back strain began during active service or is otherwise related to an in-service injury or disease.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and service connection for bilateral hearing loss is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

3. Entitlement to service connection for bilateral hearing loss.

The Veteran seeks service connection for bilateral hearing loss which he asserts is related to acoustic trauma during service.  See January 2024 Hearing Transcript.

Specific Legal Criteria

For the purposes of applying the laws administered by VA, impaired hearing will be considered 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.

First, the Board concludes that in accordance with the AOJ's favorable finding, the Veteran has been diagnosed with bilateral hearing loss.

Secondly, the Board concludes that in accordance with the AOJ's favorable finding, the evidence shows that a qualifying event, injury, or disease had its onset during the Veteran's active-duty service.  The Veteran's MOS was listed as Aircraft Maintenance, which has a high probability for noise exposure.  The Board is bound by these favorable findings.  See AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07.

Third, the Board finds that there is no nexus to service.  The September 2015 VA examiner opined that it is less likely than not that the Veteran's bilateral hearing loss is related to service.  The rationale was based on the Veteran's enlistment and separation examinations documenting hearing within normal limits for both ears using objective audiometric data with no significant shifts in thresholds for either ear occurring during military service.  The examiner reasoned that noise-induced hearing loss with delayed onset is not supported in the peer-reviewed literature or in the field.

The Board finds the September 2015 VA opinion finding no connection between the Veteran's bilateral hearing loss and active service to be the most probative evidence of record.  The examiner reviewed and cited to the contemporaneous medical and lay evidence from the Veteran's service treatment records.  The examiner demonstrated a detailed understanding of the Veteran's medical history and medical records, and the opinion is supported by an explanation.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  There is no competent medical evidence to the contrary.

The Board has not overlooked the
 of record.  The examiner reviewed and cited to the contemporaneous medical and lay evidence from the Veteran's service treatment records.  The examiner demonstrated a detailed understanding of the Veteran's medical history and medical records, and the opinion is supported by an explanation.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  There is no competent medical evidence to the contrary.

The Board has not overlooked the Veteran's testimony that his current bilateral hearing loss is related to service, to include in-service noise exposure. While the Veteran is competent to observe his hearing loss symptoms, he does not have the medical training or credentials to provide a competent opinion as to the cause of his hearing loss or whether it is related to active service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In light of the foregoing, the most probative evidence of record persuasively weighs against the claim of service connection for bilateral hearing loss.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and service connection for bilateral hearing loss is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

4. Entitlement to service connection for mental condition to include depression and sleep disturbance. 

The Veteran seeks service connection for an acquired psychiatric condition, to include depression and sleep disturbance as secondary to his back disability.  See January 2024 Hearing Transcript at 30.  

First, the Board concludes that in accordance with the AOJ's favorable finding, the Veteran has been diagnosed with depression based upon a December 2013 VA treatment records.  The Board is bound by these favorable findings.  See AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07.

Elsewhere in this decision, the Board denied service connection for low back strain.  Thus, the Board finds that these conditions cannot be service connected on a secondary basis because service connection is being denied for the underlying condition, low back strain.  Further, the Veteran has not alleged service connection on a direct or presumptive basis, and review of the record does not reflect probative evidence that supports a finding of service connection on a direct basis between the Veteran's diagnosed depression and his active military service.  

In light of the foregoing, the most probative evidence of record persuasively weighs against the claim of service connection for a mental condition, to include depression and sleep disturbance.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and service connection for a mental condition, to include depression and sleep disturbance, is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

 

David Gratz

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jordan, Jacquelynn

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.