Citation Nr: 1640284	
Decision Date: 10/07/16    Archive Date: 10/19/16

DOCKET NO.  14-20 083	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus, to include as due to bilateral hearing loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Ashley Martin, Associate Counsel


INTRODUCTION

The Veteran had active military service from October 1961 to October 1963. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

On his VA Form 9, the Veteran initially requested a hearing before a member of the Board at the RO; however, by written notice received in June and September of 2014, the Veteran withdrew this request for a hearing.  Thus, the Veteran's hearing request was cancelled and his representative was given an opportunity to submit written argument in favor of the Veteran's claims, which it did in April 2015 and April 2016.

In a September 2016 appellate brief, the Veteran's representative submitted additional evidence.  However, this evidence is subject to initial review by the Board, since the Veteran perfected his appeal May 2014, and did not request that the agency of original jurisdiction (AOJ) initially review the evidence.  See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C.A. § 7015(e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013).  Thus, the Board accepts this evidence for inclusion in the record. 

The Board remanded this matter in April 2016.  As there has been substantial compliance with the remand directives, the Board may proceed with adjudicating the issues on appeal.  Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. The preponderance of the evidence weighs against a finding that the Veteran's current bilateral hearing loss is related to service. 

2. The preponderance of the evidence weighs against a finding that the Veteran's tinnitus is related to acoustic trauma sustained in service or was proximately caused or aggravated by a service-connected disability. 


CONCLUSION OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1111, (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.385 (2015).

2. The criteria for service connection for tinnitus, to include as secondary to a service-connected disability have not been met. 38 U.S.C.A. §§ 1110 , 1111 (West 2014); 38 C.F.R. §§ 3.303 , 3.310 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Shedden v. Principi, 381 F.3d 1163 (Fed.Cir.2004); Hickson v. West, 12 Vet.App. 247 (1999).  For chronic diseases listed in 38 C.F.R. § 3.309 (a), (including sensorineural hearing loss and tinnitus) the linkage element of service connection may also be established by demonstrating continuity of symptoms since service.  38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013).  38 C.F.R. § 3.307 (a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. 

Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).

Service connection may also be granted under a theory of secondary service connection, where there is: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disorder.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.

For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). 

The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he attributes to in-service noise exposure.  

The service treatment records do not show that the Veteran had any complaints of or treatment for hearing loss or tinnitus during service.  At the Veteran's August 1961 enlistment examination audiometric testing was not conducted, however, a whisper test shows normal results.  Audiometric test results (converted to ISO units) at that time were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
35
X
20
LEFT
25
20
20
X
15

Test results (converted) at 8000 hertz were 45 decibels in the right ear; 20 in the left ear.  On the September 1963 separation examination report, "deafness partial, one ear" was noted under the Summary of Defects and Diagnoses.  

The earliest post-service evidence of bilateral hearing loss is a September 2000 VA Audiology consultation, which showed the Veteran had the following pure tone thresholds upon audiometric evaluation:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
40
55
50
LEFT
15
20
35
50
45

The impression was mild sensorineural hearing loss through 2000 Hertz with a moderate to severe loss from 3000 to 8000 Hertz in the right ear and normal hearing through 1000 Hertz with a mild to moderate sensorineural hearing loss from 2000 to 8000 Hertz in the left ear.  At that time, the Veteran denied having tinnitus.

In December 2011, the Veteran was seen in the VA ENT Clinic on referral from his primary care physician.  He complained of hearing loss since service and reported he was in the Artillery, "8 inch guns in Germany - bigger during training."  He was assessed to have cerumen impaction and hearing loss.  He was referred to the Audiology Clinic for consultation, which was conducted in February 2012.  At that time, the Veteran reported gradual onset and progression of bilateral hearing loss, right worse than left, and tinnitus in the right ear that was periodic and described as "chirping."  The only noise exposure the Veteran related was during his military service while in the Army and exposed to artillery without hearing protection.  The actual audiometric test results are not of record.  The impression was mild sloping to severe mixed hearing loss from 250 to 8000 Hertz with good word recognition for amplified speech on the right, and normal hearing from 250 to 1000 Hertz sloping to mild to moderately-severe sensorineural hearing loss from 1500 to 8000 Hertz with good word recognition for conversational speech on the left.  This represented a 10 to 35 decibel decrease in the right ear and a 15 to 20 decibel decrease in the left ear when compared to the September 2000 audiometry. He was referred back to the ENT Clinic for evaluation for his mixed hearing loss in the right ear and asymmetrical tinnitus.

He seen again in the ENT Clinic about a week later and reported decreased hearing loss since in the service and noise exposure in service to artillery with the right ear being more exposed.  He also reported tinnitus on the right described as "chirping" that was worse at night.  The Veteran declined having a magnetic resonance imaging (MRI) study for further evaluation of his asymmetric hearing loss.  He was determined not to be a surgical candidate for his mixed hearing loss. 

The Veteran underwent audiologic evaluation again in April 2013; however, it was noted that there were no significant threshold changes from the prior audiogram from February 2012 although his speech recognition scores were decreased in both ears.

In a February 2014 ENT note, a VA nurse practitioner stated: "asymmetric hearing loss/tinnitus - most likely related to noise exposure in the service."

The Veteran underwent VA examination in August 2013.  There is no discussion in the examination report of the Veteran's reported history; however, the history as seen in the claims file was submitted to the examiner in the examination request.  The diagnosis was right ear mixed hearing loss and left ear sensorineural hearing loss.  As for etiology, the examiner (an audiologist) stated that, in the absence of documentation of an induction audiogram other than a non-valid evaluation of hearing (whisper test) and no documentation of hearing thresholds at 3000 and 6000 Hz at the time of military separation, it is impossible to provide a medical opinion regarding etiology of the hearing loss without resorting to speculation.  As for tinnitus, the examiner opined that it was less likely than not that the Veteran's tinnitus was related to service as he reported having recurrent tinnitus but he could not identify a specific incident/circumstance of onset and reported it started 5 to 10 years ago.

Thereafter, the Veteran's case was referred to a medical doctor who provided a definitive medical opinion in September 2013.  In setting forth her opinion, the doctor noted that the "separation examination, dated 9/28/63, contains a statement, '71. #3983-Deafness partial, one ear.'  It is not certain how this statement was arrived at, as there is no objective data to support it, given the normal audiogram listed on the same page.  There is a 35dB loss at 8000Hz, but this does not count, for VA purposes."  Thus, she concluded that, as hearing loss is not shown at discharge, for VA purposes, it is less likely as not that the current hearing loss, bilateral, is related to in-service noise exposure, and more likely is due to post service noise exposure, aging, etc.  She further cited to a "landmark study" by the Institute of Medicine on military noise exposure released in September 2005 that "there is no scientific basis for delayed or late onset noise-induced hearing loss, i.e. hearing normal at discharge and causally attributable to military noise exposure 20-30 years later.  In cases where there were entrance and separation audiograms and such tests were normal, there was no scientific basis for concluding that hearing loss that develops 20 or 30 years later is causally related to military service.  Therefore, audiologists have no scientific basis for concluding that delayed onset hearing losses exist."  Thus she stated that, because there was no hearing loss at separation in this case, this study concludes that there is no evidence to suggest the Veteran's hearing status would be impacted later in life because of the noise events in service.

The Veteran was afforded another VA examination in January 2016.  The diagnosis was tinnitus, sensorineural hearing loss in the left ear and mixed hearing loss in the right ear.  The examiner opined that the Veteran's hearing loss and tinnitus are less likely than not caused by or the result of military service.  In providing this opinion, the examiner noted that the Veteran's separation examination shows no hearing loss bilaterally and that the Veteran's military noise history does not include live combat.  It was also noted that the record does not document any significant threshold shifts in service.  With regard to tinnitus, the examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with hearing loss.  

In an April 2016 remand, the Board found that the January 2016 opinion was inadequate and remanded for a new medical opinion addressing 1) the Veteran's reports of hearing loss since service, 2) the conversion of the audiometric test results on the September 1963 separation examination from American National Standards Institute (ANSI) to International Standard Organization (ISO) units, 3) that the evidence upon separation from service need not establish that the Veteran had a hearing loss disability for VA compensation purposes, and 4) the change in diagnosis from sensorineural hearing loss of the right ear given in September 2000 to mixed hearing loss of the right ear given in February 2012.  The examiner was also instructed to specifically address a February 2014 favorable opinion provided by the nurse practitioner.  

Pursuant to the Board's remand, a Disability Benefits Questionnaire (DBQ) was completed in June 2016.  The examiner acknowledged the Veteran's consistent reports of hearing loss since service.  However, he noted that the Veteran's reports do not substantiate the onset of bilateral hearing loss in service, especially in light of the Veteran's normal separation examination.  Next, the examiner converted the Veteran's September 1963 audiometric findings from American National Standards Institute (ANSI) to International Standard Organization (ISO) units.  Because the Veteran's enlistment examination consisted of only a whisper test, the examiner noted that it was impossible to assess any changes in threshold measures.  

The examiner acknowledged that the evidence upon separation from service need not establish that the Veteran had a hearing loss disability for VA compensation purposes.  However, because there is no audiometric evidence dated between 1963 and 2000, the examiner opined that it is less likely than not that that the Veteran's current hearing loss is casually related to service.  The examiner also discussed the change in the Veteran's diagnosis from sensorineural hearing loss of the right ear given in September 2000 to mixed hearing loss of the right ear given in February 2012.  In this regard, the examiner noted that findings for the Veteran's right ear, according to the January 2016 VA examination, are consistent with a middle ear pathological condition known as otosclerosis.  Service treatment records make no mention of any middle ear pathology or bilateral hearing loss.  In fact, the Veteran's separation examination showed no bilateral hearing loss as per VA standards.  Treatment records from September 2000 show a diagnosis of bilateral sensorineural hearing loss.  The examiner assumed that the September 2000 audio evaluation was valid and with good reliability to the obtained data.  Thus, the most viable explanation for the bilateral sensorineural hearing loss diagnosis in September 2000 is that the pathology causing the air- bone gap (the conductive component with audiometric findings evidenced by the air- bone gap in the right ear that are consistent with otosclerosis) had not manifested itself.  Therefore, it is at least as likely as not that the conductive pathology evidenced in the right ear developed after the September 2000 evaluation.  

Lastly, the examiner discussed the positive opinion provided by the nurse practitioner in February 2014.  The examiner noted that the nurse practitioner did not provide a rationale for the opinion that the current hearing loss was related to noise exposure in service while consulting with the Veteran for use of a nasal steroid spray and removal of cerumen in both ears.  Thus, the examiner opined that the nurse practitioner was likely as not resorting to speculation when providing an etiology opinion regarding the Veteran's asymmetric hearing loss.  The examiner opined that the nurse practitioner's statement did not meet the standards of multiple VA examinations performed by licensed audiologist following extensive VA testing and audiological medical review protocols prior to rendering medical opinions.  

After reviewing the medical evidence, the Board finds that service connection for bilateral hearing loss and tinnitus is not warranted on a direct basis.  There is competent, credible evidence that the Veteran currently has bilateral hearing loss and tinnitus. The VA examination reports show a diagnosis of tinnitus and bilateral hearing loss in accordance with 38 C.F.R. §3.385.  There is also evidence that the Veteran suffered acoustic trauma in service.  The Board notes that the Veteran's military occupational specialty (MOS) of Field Artillery Basic and the units he was assigned to in service (a tank regiment and a Howitzer battalion) are consistent with his report of noise exposure.  Therefore, in-service acoustic trauma is conceded.  38 U.S.C.A. § 1154 (a).

However, there is no evidence linking the Veteran's hearing loss and tinnitus to service, to include acoustic trauma.  The Veteran's service treatment records are silent for any complaints or diagnoses of hearing loss and tinnitus.  While the Veteran's separation examination includes the examiner's reference to partial deafness in one ear, the examiner did not specify which ear.  .  

Generally, once VA determines that a Veteran has a disease or injury that was incurred or aggravated in service, service connection can be granted without regard to severity.  However, hearing loss is an exception.  A minimum degree of hearing loss is a prerequisite for entitlement to service connection.  McKinney v. McDonald, 28 Vet. App. 15 (2016).  A change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385.  Additionally, 38 C.F.R. § 3.385 applies before a service connection determination is made.  Even with the examiner's reference to partial deafness on the separation examination, the findings do not meet the criteria of 38 C.F.R. § 3.385; no hearing loss disability for VA compensation purposes was shown at separation.  

Post-service treatment records begin to show complaints of hearing loss in September 2000, more than 30 years after separation.  With regard to tinnitus, the Veteran has not claimed that he has had tinnitus in service.  In fact, at the August 2013 VA examination, the Veteran reported that his tinnitus began 5 to 10 years ago.  The June 2016 VA examiner also opined that the Veteran's hearing loss and tinnitus are not at least as likely as not caused by or the result of military service.  The examiner noted that there is no documentation to support the Veteran's contentions of hearing loss since service or evidence of hearing loss for 30 years after service.  The examiner also noted that the Veteran right ear is consistent with a middle ear pathological condition known as otosclerosis.  The Board finds this opinion to be highly probative.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The reference to hearing loss more than 30 years after separation, the Veteran's middle ear pathological condition and the IOM study indicates the opinion was not based solely on normal hearing at separation.  Cf. Hensley, 5 Vet. App. at 155.  Furthermore, the examiner is an audiologist who possesses the necessary education, training, and expertise to provide the requested opinion.  In addition, the examiner considered the Veteran's history of noise exposure in service and provided an adequate rationale for the opinion.  

In contrast, the February 2014 notation on the ENT note by the nurse practitioner does not have a rationale.  To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  Nieves-Rodriguez, 22 Vet. App. at 295.  

Service connection is also not warranted on a presumptive basis, as there is no evidence suggesting that the Veteran's current hearing loss or tinnitus manifested within one year of service separation.  38 C.F.R. § 3.307.  Service connection is not warranted under 38 C.F.R. § 3.303 (b), as there is no evidence showing that the Veteran's hearing loss manifested in service.

With regard to tinnitus, the VA examiner opined that it is at least as likely as not related to the Veteran's bilateral hearing loss.  However, as the Veteran is not service-connected for bilateral hearing loss, the Board finds no basis for granting secondary service connection. 

The Board is sympathetic to the Veteran's assertions that his hearing loss and tinnitus should be service connected.  Lay persons are competent to provide opinions on some medical issues.  Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). 

In light of the above discussion, the Board finds that the service connection claims for hearing loss and tinnitus must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable.  See 38 U.S.C.A. § 5107 (b).

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.



____________________________________________
M.E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs