Citation Nr: 1800145 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-46 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan 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. Air Force from August 1961 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a October 2015 rating decision of the Department of Veterans Affairs (VA) Evidence Intake Center in Newnan, Georgia. Jurisdiction lies with the Regional Office (RO) in Detroit, Michigan, which certified the case to the Board. In October 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). 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 jet engine noise 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 (SNHL) 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 SNHL 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. Private treatment records and an October 2015 VA examination indicate that the Veteran has a current diagnosis of hearing loss in accordance with 38 C.F.R. § 3.385 and of tinnitus. The Veteran's DD 214 indicates that his specialty is listed as material facility specialist. The Veteran's military personnel record indicates that his duties from August 1963 to August 1964 involved picking up property from pickup points and delivering them to base supply. The record indicates that the Veteran was tasked with delivering aircraft spares and pieces to the maintenance shops for repair. Service treatment records (STRs) indicate hearing within normal limits. The Veteran's enlistment examination on August 10, 1961, and his separation examination on June 1, 1965 do not indicate any hearing related problems. In an August 2015 letter, the Veteran stated that he was transferred to the flight line in September 1963 and that since service his hearing difficulties have increased over time. He states that since service he has no had exposure to loud noises. The Veteran indicates that he has received treatment from Dr. Chan at the Michigan Ear Institute since July 2015. The Veteran stated that during service he experienced that the airplane noises hurt his ears and gave him headaches but that he thought it came with the job and therefore did not report it. In a private treatment record received in August 2015, an MRI study result indicates right-sided hearing loss. In a July 2016 notice of disagreement (NOD), the Veteran stated that he never reported his hearing loss or tinnitus in service but that he experienced ear aches and ringing in his ears from time to time. The Veteran stated that his exposure to jet aircraft noise was almost constant, and that he was never offered hearing protection. In an October 2017 letter, the Veteran noted that his DD 214 indicates that his transfer to the flight line required a security clearance. The Veteran again states that he never reported his hearing loss or tinnitus in service because he did not think that was something that was done. He states that he has symptoms of ringing in the ears along with earaches and headaches. In a May 2017 statement, the Veteran indicates that he sought a second opinion in September 2015 and notes that the findings mirrored those of Dr. Chan. In a September 2017 statement, a fellow soldier indicated that he served with the Veteran and was his barracks roommate for two years. He stated that they both worked on the flight line in non-mechanic job assignments, were never issued ear protection, and never received hearing loss education. He stated the Veteran's job was to work on the flight line every day picking up and delivering aircraft parts. He states that they were subjected to very loud jet engine noises, that their work environment was extremely loud, and that their barracks were right across the road from the hangar, which subjected them to jet take-off noise constantly. In October 2017, the Veteran submitted a research article regarding noise exposure limits. This article indicates that jet engines taking off are louder than 140 dB. However, while this research article relates to the Veteran's contention that he was exposed to jet engine noise, it does not provide a nexus opinion relating the Veteran's hearing loss or tinnitus to his service. Thus, the Board affords it low probative value. In the October 2017 hearing, the Veteran testified that he was an organizational supply specialist and was on the flight line consistently for two years as part of his duties. The Veteran testified that after two years in service he was transferred to the tactical wing where he was assigned to the flight line and his job changed to material facility specialist, specifying that his job involved pickup and delivery of aircraft parts on the flight line. The Veteran testified that during that time he was directly on the flight line but was never issued any hearing protection and was never educated on it. The transcript indicates that the Veteran received treatment within a year out of service but did not continue, noting that they told him that he needed hearing aids but he felt he was too young for hearing aids. The Veteran testified that he was asked about hunting and a motor vehicle accident during his audiology examination. The Veteran stated that he has gone hunting and that he was in an accident in 1972 but that he did not receive a diagnosis of a concussion and did not suffer any hearing loss after the accident. The Veteran testified that he never reported hearing loss or tinnitus during service and that he waited until 2015 to file his claim because he "never really ever thought about it" until he became involved in the American Legion. The Veteran testified that he had a cochlear implant about a year and a half ago. Private medical treatment records from the Michigan Ear Institute indicate that the Veteran was seen for chronic asymmetric SNHL, worse in the right ear in July 2015. Dr. Chan indicates that the Veteran attributed his hearing loss to service where he was exposed to loud jet engines and was not using ear plugs. The record indicates that the Veteran hunted in the past and is a right handed shooter. The record notes that the Veteran has chronic buzzing nonpulsatile tinnitus in the right ear. Dr. Chan notes that they discussed that "his previous military noise exposure is likely contributing to his current hearing loss and tinnitus symptoms, however the asymmetry is not readily explained by general loud noise exposure or presbycusis." The record indicates that the Veteran denies any distinct preceding incident that may have led to his mainly right-sided hearing loss and tinnitus. Dr. Chan notes that they discussed his previous motor vehicle accident with a history of concussion which may have played a role. The examiner indicates that the etiologies of tinnitus were reviewed and noted as likely related to underlying SNHL. Dr. Chan notes that "although previous noise exposure history is likely contributing to his current hearing loss and tinnitus symptoms, the asymmetry is concerning and atypical for general loud noise exposure or presbycusis, especially without a distinct preceding incident that led to his mainly right-sided hearing loss." A record dated June 28, 2016 indicates a right BAHA implantation. The record indicates that the Veteran has a longstanding history of asymmetric SNHL, worse in the right ear. Dr. Chan notes that the Veteran's "hearing loss was attributed to military noise exposure. Hearing has progressed over the last several years and has always been worse in the right ear. The patient is also a hunter and is a right-handed shooter. He has right-sided nonpulsatile tinnitus." The Veteran underwent a VA examination in October 2015. The examiner reviewed the record and discussed evidence found in STRs as well as the findings and opinion from the Veteran's private examiner. The examiner noted that the Veteran reported the onset of hearing loss close to 50 years ago and tinnitus around 30 years ago. The examiner found that his separation audiological examination revealed hearing within normal limits bilaterally with no threshold shifts evident, and he opined that the Veteran's current hearing loss is less likely than not related to exposure to hazardous noise in service. The examiner explained that no hearing loss was found at the time of military discharge and noted a reference to the Institute of Medicine (2006) that states that "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The examiner explained that, therefore, it is less than likely that the current hearing loss is related to military noise exposure. The examiner explained that it is well understood that there are many causes of tinnitus and noted that it is not a disease but a symptom of an underlying condition. The examiner opined that that the most likely etiology of the Veteran's tinnitus is the current hearing loss. However, the examiner noted that he determined that it is less likely as not that the Veteran's current hearing loss was caused by or the result of military service, and therefore it follows that the tinnitus is not caused by noise exposure in service. The examiner stated that the Veteran's current tinnitus is less likely than not related to exposure to hazardous noise in service. He explained that there are no documented hearing threshold shifts at the time of military discharge and that there is no documented or reported noise related event associated with tinnitus onset. In a September 2016 letter, Dr. Chan indicated that it is at least as likely as not that the Veteran has had a hearing loss secondary to noise exposure from his service. 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 October 2015 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, any reported history of hearing loss or tinnitus, and private treatment, including the private examiner's opinion, and based the opinion on this evidence and the 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 September 2016 private examiner's nexus opinion is afforded low probative value. The private examiner does not provide a clear rationale to explain the conclusion that it is at least as likely as not that the Veteran has had a hearing loss secondary to noise exposure from his service. Additionally, as discussed above, private treatment records indicate that the private physician noted that the asymmetry in the Veteran's symptoms was concerning and atypical for general loud noise exposure. However, the private physician did not address this concern in the September 2016 nexus opinion provided. 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 treatment records from July 2015, nearly 50 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). The Board acknowledges that the Veteran was exposed to loud noise in service, and has considered his statements and the buddy statement provided, 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 July 2015, nearly 50 years after his separation from service. Review of the Veteran's record reveals that he did not report any symptoms related to his hearing loss or tinnitus for over 40 years since service. The Board acknowledges the Veteran's statement that he sought treatment within a year after service; however, there is no record of that treatment. The Board finds it likely that if the Veteran had significant symptoms for the many years following service, he would have sought more treatment for his hearing problems closer in time to his separation from service. While the Veteran has stated his belief that his hearing loss and tinnitus are caused by acoustic trauma from jet engine noise 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 a 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 October 2015 examination report and resulting opinion regarding the etiology of the Veteran's bilateral hearing loss and tinnitus disabilities 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