Citation Nr: 18140197 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-44 371 DATE: October 2, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The most probative evidence of record indicates that the appellant’s current bilateral hearing loss did not manifest in service or within one year of separation, and is not related to disease or injury during his active service. 2. The evidence is in relative equipoise as to whether the appellant’s current tinnitus is causally related to noise exposure during his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the Navy from September 1960 to December 1980. He is the recipient of the Good Conduct Medal on four occasions. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appellant filed a timely Notice of Disagreement (NOD), received in February 2016. A Statement of the Case (SOC) was issued in August 2016. A timely substantive appeal was received in September 2016. Background The appellant’s August 1960 Report of Medical Examination indicates that whisper and spoken voice testing was conducted and revealed acuity of 15/15 bilaterally. He was qualified for enlistment. On his enlistment Report of Medical History, he reported that he was in good health. He denied wearing hearing aids, or having any ear, nose, or throat trouble. In December 1962, whisper and spoken voice testing was again conducted and revealed hearing acuity of 15/15 bilaterally. In August 1964, pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 5 [20] 0 [10] 0 [10] 0 [10] 5 [10] LEFT 5 [20] 0 [10] 0 [10] 10 [20] 5 [10] (Note: as this audiometric testing was conducted prior to January 1, 1967, the results were presumably reported in American Standards Association (ASA) units. Where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) standard by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 add 15 10 10 10 5 The converted results are reported in brackets above). In January 1969, the appellant underwent evaluation in connection with his submarine service. He reported that he could hear well and “pop” his ears. He denied having any ear trouble. He also denied that his ears were ever injured by gunfire or loud noise. February 1969 pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 0 [15] -5 [5] 0 [10] 5 [15] -5 [0] LEFT 0 [15] -5 [5] 0 [10] -5 [5] -15 [-10] (Note: It is unclear whether the thresholds were recorded in ASA or ISO-ANSI units at the time of this audiological evaluation, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the instant appeal). On his June 1970 Report of Medical History, the appellant denied having or ever having had ear, nose, or throat trouble, hearing loss, or having worn hearing aids.  In November 1973, the appellant underwent audiometric testing which revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 10 20 LEFT 20 15 10 20 45 During his October 1980 retirement examination, pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 0 20 15 LEFT -5 -5 -5 5 10 In connection with his retirement examination, the appellant completed a report of medical history on which he reported that he was in good to excellent health. He denied wearing a hearing aid, and having or ever having had hearing loss, or ear, nose, or throat trouble. Service treatment records are otherwise negative for complaints, observations, treatment, or diagnoses regarding hearing loss. In October 2015, the appellant submitted an application for VA compensation benefits on which he indicated that bilateral hearing loss and tinnitus began in service. See October 2015 VA Form 21-526EZ. The appellant was afforded a VA examination in February 2016. The claims file was reviewed. The appellant reported that he had worked as an electronics technician on submarines. He endorsed noise exposure from submarines and from gunfire while stationed on a destroyer. He indicated that hearing protection had not been available. The appellant indicated that following his retirement from active duty, he worked in electronics. He denied any recreational noise exposure, otosurgeries, recent ear infections, or the use of ototoxic drugs. The appellant reported difficulty hearing the television, conversations, and high-frequency sounds, such as his wife’s voice. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 55 65 65 LEFT 30 35 60 65 65 The 1000-4000 Hertz average was 56 decibels in the right ear and 56 in the left. Speech recognition using the Maryland CNC word list was 96 percent in the right ear and 98 percent in the left. The examiner diagnosed the appellant as having bilateral sensorineural hearing loss. The examiner opined that it was less likely than not that the appellant’s current bilateral hearing loss was caused by or a result of his active service. It was noted that the appellant’s hearing acuity had been normal bilaterally upon separation and there were no complaints of hearing loss in the appellant’s service treatment records. The examiner explained that according to the Institute of Medicine’s 2006 report, “Noise and Military Service – Implications for Hearing Loss and Tinnitus,” there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. During the examination, the appellant reported that he constantly experiences tinnitus bilaterally. He described it as a high-frequency ringing/crickets. He stated that he has noticed this since he was in the military, around 1970. The examiner opined that it was less likely than not that the appellant’s tinnitus was caused by or a result of military noise exposure because there were no complaints of tinnitus in the appellant’s service treatment records and he denied any ear trouble on questionnaires he completed while on active duty. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including an organic disease of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). Hearing Loss Upon weighing the evidence, the Board finds that the preponderance of the evidence is against the award of service connection for hearing loss. As an initial matter, in-service noise exposure has been conceded. See August 2016 SOC. Further, the appellant has a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Thus, the question before the Board is whether the appellant’s current hearing loss had its inception during his active service or whether there is a nexus between his current hearing loss and his active service. The Board first finds that the appellant’s current hearing loss disability did not have its inception during active service. As set forth above, although audiometric testing in November 1973 showed 45 decibels at the 4,000 Hertz frequency in the left ear, this was a temporary threshold shift, as audiometric testing conducted at service separation showed normal hearing acuity in both ears at all frequencies. The Board finds that the single November 1973 audiogram in not indicative of a chronic or permanent sensorineural hearing loss in service. This conclusion is strengthened by the fact that on his October 1980 Report of Medical History, the appellant denied experiencing hearing loss. The Board notes that the appellant certified that the information he provided on such Report as true and complete to the best of his knowledge. This statement is also consistent with the appellant’s prior reports in service in which he consistently denied experiencing hearing loss. The Board has considered the appellant’s recent recollections to the effect that his chronic hearing loss symptoms began in service but assigns more probative weight to his contemporaneous denial of difficulty hearing or other ear-related problems in service and at service separation than to his current recollections, made decades after the fact in the context of a claim for monetary benefits. Although the most probative evidence shows that a chronic hearing loss disability was not present in service or manifest to a compensable degree within one year of separation, as set forth above, service connection may be established for a disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, however, the most probative evidence indicates that the appellant’s current hearing loss is not causally related to his active service, including established acoustic trauma. As discussed above, the appellant was afforded a VA examination in February 2016 in connection with his claim. The examiner determined that the appellant’s current hearing loss was not related to service. The Board has carefully reviewed the February 2016 examination report and accompanying etiological opinion and finds that it is entitled to great probative weight. The VA examiner considered the appellant’s competent reports of in-service noise exposure and that he was not afforded hearing protection but explained that given the audiometric findings at the appellant’s separation examination, it was less likely than not that his current hearing loss had had its inception in service or was otherwise related to service, including in-service noise exposure. The examiner explained that it was the “definitive consensus” of the medical community that, based on the available anatomical and physiological data regarding the recovery process following noise exposure, it was unlikely that delayed onset hearing loss occurred. In other words, a permanent hearing loss follows immediately after traumatic noise exposure; there is no scientific basis to support delayed-onset hearing loss following noise exposure. The Board notes that there is no other competent medical evidence which contradicts the examiner’s opinion. The Board has considered the contentions of the appellant’s representative to the effect that the February 2016 VA medical opinion is inadequate because it was based on the absence of hearing loss symptoms in service. As explained above, however, the examiner did consider the appellant’s reported history, including in-service symptoms and noise exposure. The Board has also considered the representative’s contentions that the appellant experienced significant threshold shifts between multiple audiological evaluations while on active duty and that VA should concede exposure to hazardous noises and acoustic trauma. However, the Board observes that, while the representative referred to the results of the August 1964 audiological evaluation, and stated that such occurred in 1962, there is no indication that the representative converted the results from ASA to ISO-ANSI, as discussed supra. As best the Board can discern, the representative cited to 29 C.F.R. § 1910.95 to support the contention that exposure to hazardous noise should be conceded. However, as noted in the August 2016 SOC, in-service noise exposure has been conceded. Further, the February 2016 VA examiner considered the appellant’s competent reports of noise exposure from submarines and from gunfire while stationed on a destroyer, without benefit of hearing protection. Again, the Board has carefully reviewed the February 2016 examination report and accompanying hearing loss etiological opinion and finds that such is entitled to great probative weight. The VA examiner did, in fact, consider the appellant’s competent reports of in-service noise exposure and that he was not afforded hearing protection. The examiner’s negative opinion regarding hearing loss was based upon the fact that audiological testing revealed normal hearing upon separation and the Institute of Medicine’s 2006 report, “Noise and Military Service – Implications for Hearing Loss and Tinnitus,” which the examiner explained indicated that there was no scientific basis to support delayed-onset hearing loss following noise exposure. The Board finds that the examiner’s opinion as to hearing loss is persuasive as it is well-reasoned, consistent with the evidence of record, based on medical studies, and took into account the appellant’s reported medical history. Thus, it is entitled to significant probative weight. There is no competent clinical evidence of record to contradict the examiner’s findings or otherwise indicate that service connection could be established. Neither the appellant nor his representative has identified any such evidence. In reaching its decision, the Board has considered that the appellant reported in his October 2015 VA Form 21-526EZ that his hearing loss began in service and that November 1973 audiometric testing showed 45 decibels at 4,000 Hertz. Sensorineural hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309 apply to the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish presumptive service connection, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. After considering the record, the Board finds that presumptive service connection is not established by the evidence of record. First, the record shows that chronic sensorineural hearing loss was not present in service. The November 1973 audiogram is not sufficient to establish either that the hearing loss was sensorineural in nature or that the hearing loss was chronic. There was no finding that the November 1973 decibel loss at 4,000 Hertz was sensorineural in nature as opposed to some other etiology. Moreover, the hearing loss was not shown to be chronic, as the subsequent audiogram in 1980 showed normal hearing acuity. The Board has considered the appellant’s recent reports of hearing loss since service, but the contemporaneous evidence (which the Board has found more probative) establishes that he denied hearing loss symptoms during active service. Thus, “continuity of symptoms” after service has not been established. 38 C.F.R. § 3.303 (b). As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Tinnitus The appellant contends that he developed tinnitus in service as a result of noise exposure. As noted above, in-service noise exposure has been conceded. Moreover, unlike a hearing loss disability which must be shown by audiometric testing for purposes of section 3.385, tinnitus is an inherently subjective disability and is therefore is readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). Thus, the appellant is competent to report when he began experiencing tinnitus and the history of his symptoms. The Board has considered the February 2016 VA medical opinion to the effect that it is less likely than not that the appellant’s tinnitus was caused by or a result of military noise exposure because there were no complaints of tinnitus in the appellant’s records. The examiner, however, did not address the appellant’s current reports that his tinnitus had been present since service. Although the service treatment records show that the appellant consistently denied hearing loss in service, he never denied tinnitus. Thus, there is no contemporaneous evidence to contradict his current reports that his tinnitus had its inception during service. (Continued on the next page)   As set forth above, under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Given the evidence set forth above, such a conclusion certainly cannot be made in this case. Under these circumstances, the record is sufficient to award service connection for tinnitus. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel