Citation Nr: 1757026 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 16-47 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from April 1969 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran's current hearing loss disability did not have its onset during service and was not caused by his active service. 2. The Veteran's current tinnitus did not have its onset during service and was not caused by his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not all been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not all been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he developed bilateral hearing loss and tinnitus due to his exposure to acoustic trauma in service. In considering the evidence of record, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss or tinnitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "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). Certain chronic diseases, including sensorineural hearing loss and tinnitus (organic diseases of the nervous system), may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Here, the first evidence of either sensorineural hearing loss or tinnitus is shown in October 2009 VA treatment records, over 30 years after service. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). A hearing loss disability is defined for VA compensation purposes with regard to audiology testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz for one ear are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. A VA audio examination in December 2010 and VA treatment records indicate a diagnosis of hearing loss and recurrent (intermittent) tinnitus. These diagnoses satisfy the first element of a service connection claim. The Veteran's DD-214 indicates that the Veteran's military occupational specialty (MOS) was an air traffic controller. Based on his MOS, the Veteran's exposure to loud noise is conceded. In a May 2010 statement, the Veteran detailed his experiences in service and stated that his hearing loss and tinnitus are caused by acoustic trauma from blasts and explosions in service. The Veteran underwent a VA audio examination in December 2010. The examination report indicates that the Veteran reported being exposed to aircraft engine noise, explosions, and helicopters. The report indicates that the Veteran was an air traffic controller and wore a headset in service. After service, the Veteran worked as a diesel truck mechanic for 20 years, reporting that it was loud at times and that ear protection was not required. The report indicates that the Veteran rides a motorcycle and wears a helmet for ear protection. The December 2010 examination report indicates that the Veteran's tinnitus occurs occasionally, about two or three times a week, lasting a couple of hours at a time. The Veteran reported that he was not sure how long he has had tinnitus but that it was possibly 3 to 4 years ago. The December 2010 VA examiner noted that he reviewed the Veteran's service and post-service VA records and opined that the Veteran's current hearing loss and tinnitus are less likely as not caused by or a result of military noise exposure. The examiner explained that although the Veteran currently has significant hearing loss bilaterally, his hearing was completely normal at separation, so the current hearing loss was more likely a post service occurrence. The examiner states that since there was no evidence of high frequency hearing loss at separation, the tinnitus is also less likely due to military noise exposure. A VA treatment record dated October 21, 2009, provides an audiology consult indicating that the Veteran reported significant hazardous noise exposure in the military around artillery/weapon fire, loud equipment/machinery, helicopters and noted frequent hearing difficulty in various listening environments. The record indicates that the Veteran denied tinnitus or other unusual noises, unexplained sudden hearing loss, or current or prior hearing aid use. Service treatment records (STR) indicate that the Veteran's separation examination in November 1971 indicates that the Veteran's ears were marked as normal. In the May 2017 hearing, the Veteran testified that during service he was an air traffic controller. The Veteran testified that while he was assigned there, the control tower was "obliterated by Viet Cong, NVA artillery and its tremendous explosion as it went up." He testified that there was noise from exploding shells, rockets, and mortars. The Veteran testified that after service he was not exposed to acoustic trauma or loud noises. However, the Veteran stated that he worked for 30 years as an automotive mechanic in a private garage, noting that most of the work was manual but that pneumatic tools were available. The Veteran also stated that he made about 20 to 25 jumps from a private airplane and that he rides motorcycles, indicating that helmets were used for both activities. The Veteran testified that he had symptoms of hearing loss when he left service and that the incident he described occurred in April 1971. The Veteran stated that he had hearing loss for a few months but that his hearing came back and the ringing in his ears went away when he was reassigned. However, the Veteran also testified that he first noticed hearing loss or tinnitus 15 to 20 years ago, indicating that prior to that time he paid no attention to it. The Veteran testified that he did not seek treatment until he came to the VA. The Veteran testified that he receives treatment for hearing loss only through the VA and was provided with hearing aids, which he used until the batteries corroded. The Veteran stated that he does not recall telling anyone that he had hearing problems in service or when he left service. The Veteran provided a medical nexus opinion from his treating physician, Dr. W.S. in May 2017. The physician's nexus statement indicates that the physician is the Veteran's treating physician and is familiar with the Veteran's medical history. The physician indicates that he reviewed the Veteran's STRs and treatment records from other private physicians. The physician indicated that the Veteran's claimed disabilities of bilateral hearing loss and tinnitus are most likely caused by or a result of the Veteran's military service. The physician attached a letter to the statement and explained that he has been treating the Veteran for hearing loss and tinnitus for over 20 years. The physician indicates that he reviewed copies of the Veteran's military history and certifications. The physician indicates that it is more likely than not that the Veteran's hearing loss and tinnitus are due to multiple exposures to loud ordinance while in the military. A May 2017 statement from the Veteran's spouse indicates that she met the Veteran in December of 1991 and that he was hard of hearing. She states that his hearing has gotten worse since that time, and that he appeared to deal with it until it grew to a greater degree, at which point he looked for corrective measures. When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Additionally, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds the December 2010 VA examiner's opinion to be the most probative evidence of record as to whether the Veteran's current hearing loss and tinnitus disabilities are related to the Veteran's active service. The examiner was fully aware of the Veteran's military noise exposure and any hearing loss or tinnitus history, as noted in the record, and based her opinion on this evidence and her examination of the Veteran. Based on the examiner's opinion, the Board cannot make a finding that the Veteran's hearing loss or tinnitus are at least as likely as not the result of acoustic trauma in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Conversely, the May 2017 private examiner's nexus opinion is afforded low probative value. The private examiner does not provide a clear rationale to explain his conclusion that the Veteran's hearing loss or tinnitus are connected to service. Additionally, while the private examiner indicates that he has been treating the Veteran for hearing loss and tinnitus for over 20 years, the Veteran testified in his May 2017 hearing that he only receives treatment for his hearing loss through the VA and not through any private medical provider. Accordingly, the Board affords this medical opinion low probative value. To the extent the Veteran has asserted that he has had hearing problems since service, he is competent to do so. However, his statements are not persuasive. STRs do not indicate that the Veteran reported hearing problems during service. The earliest post-service medical evidence of record reflecting the Veteran's complaints of hearing problems are in VA treatment records from October 2009, nearly 40 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board acknowledges that the Veteran was exposed to acoustic trauma in service, and has considered his lay statements attributing his current hearing loss and tinnitus to his in-service noise exposure. While it is common knowledge that exposure to loud noise can cause hearing loss and tinnitus, the first medical evidence of record reflecting the Veteran's symptoms of either hearing loss or tinnitus is dated in October 2009, 38 years after his separation from service. Review of the Veteran's VA treatment records reflect that he denied experiencing any ringing sounds in his ears during his visit on October 21, 2009. The Board finds it likely that if the Veteran had significant symptoms for the many years following service, he would have sought treatment for his hearing problems closer in time to his separation from service. Also, the Veteran has not stated in clear and definite terms that he has experienced hearing loss since service. In his May 2017 hearing, the Veteran stated that he had symptoms of hearing loss when he left service but also that he first started noticing hearing loss or tinnitus 15 to 20 years ago. Furthermore, the record contains inconsistent statements from the Veteran as to when his tinnitus began. Although he testified that he had experienced ringing in his ears since service, at the May 2010 VA examination the Veteran indicated that he was not sure how long he has had tinnitus but that was it was possibly 3 to 4 years. Accordingly, because of the Veteran's ambiguity as to when his hearing problems began, the inconsistences in his statements regarding the onset of his tinnitus, as well as the lack of any symptoms or disability during service and for many years following service, the Board does not find the Veteran's recollections regarding hearing loss and tinnitus since service to be credible. Thus, the Board finds that the Veteran's statements as to the onset and continuity of symptoms are of little probative value. While the Veteran has stated his belief that his hearing loss and tinnitus are caused by acoustic trauma from blasts and explosions in service, the question of an actual association between his hearing loss, diagnosed many years after his separation from service, and his hazardous military noise exposure is a medical question too complex for lay person to competently address. See 38 C.F.R. § 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not demonstrated expertise in this area. Given the above, the Board finds that the most probative evidence of record shows that the Veteran's bilateral hearing and tinnitus disabilities are not due to an incident during service and did not begin in service or manifest within a year of separation from active service. Specifically, the December 2010 examination report and resulting opinion regarding the etiology of the Veteran's bilateral hearing loss disability weigh heavily against his claim. Based on the foregoing, the preponderance of evidence is against a finding that the Veteran's current bilateral hearing loss or tinnitus is at least as likely as not etiologically related to his hazardous military noise exposure. Thus, there is no reasonable doubt to be resolved in the Veteran's favor, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs