Citation Nr: 18142539 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-27 641 DATE: October 17, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for rheumatoid arthritis is remanded. FINDINGS OF FACT 1. The Veteran’s hearing loss was not incurred in service or within one year of service and was not caused by any aspect of service including noise exposure. 2. The Veteran’s tinnitus was not incurred in service or within one year of service and was not caused by any aspect of service including noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to June 1977 in the United States Navy including service in the Republic of Vietnam with additional active duty for training in the Naval Reserve until 1996. This current appeal comes to the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board thus finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. The Veteran will not be prejudiced because of the Board’s adjudication of the claims below. Service Connection Generally, to establish service connection 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 incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any frequencies 500, 1000, 2000, 3000, 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. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet App. at 159. Secondary service connection may be granted for a disability that is proximately due to a service-connected disease or injury, or that a service-connected disease or injury aggravated (increased in severity) the nonservice-connected disability for which service connection is sought. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.310. 1. Bilateral Hearing Loss Service personnel records show that the Veteran was a helicopter pilot during active service with additional active duty for training service in the Naval Reserve. Thus, exposure to aircraft operational noise is conceded. He retired from Reserve service at the rank of captain in 1996. Annual flight physical examinations through May 1996 show continued qualification for flight duty and that the Veteran’s civilian occupation was airline pilot. Personnel records also show that many of the active duty for training assignments were at major headquarters and not with operational squadrons. Absent any detailed records to compare flight hours in military versus civilian aircraft after 1977 and civilian aircraft only after 1996, the nature and circumstances of the two occupations suggests some exposure in both but likely greater in the civilian occupation. Audiological exams in the service treatment records (STRs) do not show any hearing loss. The Veteran denied hearing loss at the end of his service in 1977, again in 1979, and in 1982 and audiological examinations on these occasions did not show hearing loss. Likewise, periodic military flight physical examinations in 1988, 1989, 1991, and 1995 show normal hearing. The most recent annual flight examination from May 4, 1996 does not show abnormal hearing acuity, and the Veteran denied any hearing loss at that time In April 2005, the Veteran underwent a hearing test. The examiner noted “[g]ross hearing test reveals normal hearing. Inspection of ears reveals no abnormalities.” By May 31, 2014 it was evident that the Veteran was experiencing sensorineural hearing loss in both ears. On the authorized audiological evaluation in May 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 50 50 45 LEFT 15 10 45 35 20 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. The examiner opined, Acoustic trauma is conceded. Service treatment records indicate veteran had normal hearing at enlistment and separation from military service and there was no evidence of significant changes in hearing thresholds greater than normal measurement variability, during military service. There was no record of complaint, or treatment, of the claimed condition in the service records. Veteran reported civilian occupational noise exposure, which could be a contaminating factor. In the notice of disagreement (NOD) from August 2014 the Veteran reported that he was part of a helicopter support squadron in Vietnam, he was on naval ships and carriers that experienced fire fights, and that his reserve duties included a flying instructor. Another statement was submitted in June 2016 arguing that noise exposure may not cause hearing loss right away. It states that “I believe that eight years of flying helicopters and airplanes and service on ships at sea is more than enough to establish a connection between hearing loss and military service.” The statement requests the benefit of the doubt be applied here. Outpatient records were submitted in May 2017. They show that the Veteran was not using hearing aids as of August 2014, but by the following year he began using hearing aids. While there are no audiological examinations in the outpatient records, the Veteran did report working as a pilot for the Federal Aviation Administration (FAA) and as an aviation inspector. The benefit of the doubt rule applies when evidence is in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Unfortunately, here, the evidence shows that it is less likely than not that the Veteran’s bilateral hearing loss was caused by military service. The Board concedes that the Veteran experienced noise exposure during service. However, records from service, between the years 1969 and 1996 do not indicate any hearing loss; and, as pointed out by the examiner, there were no complaints for or measurements of hearing loss until the last few years. There was also no evidence of hearing loss in 2005. The Board may consider the absence of complaints or treatment for an extended period as evidence against the claim. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, there is no lack of evidence as STRs show that for almost 30 years the Veteran’s hearing remained consistent. There was also a hearing test performed in 2005 that did not reveal hearing loss. It was not until the May 2014 examination that evidence of hearing loss is indicated. Not only does hearing loss not reveal itself until the past 10 years, the VA examiner stated that a “contaminating factor” in the Veteran’s hearing loss would be his civilian exposure to acoustic trauma. Even though the Veteran states that hearing loss can be delayed, and he is competent to report symptoms of hearing loss, he is not able to make that medical determination as that is not something to which a lay person can attest. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical explanation for the Veteran’s hearing loss is long term acoustic trauma outside military service. Records from during and after service do not show an onset of any hearing deterioration until around 2012, roughly 45 years after the Veteran completed active service. Without a conflicting medical opinion to support the Veteran’s claim that his hearing loss was delayed, and with the records showing that hearing was normal for decades after service, the Board will deny entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus Tinnitus was denied at separation in 1977, and no complaints for ringing in the ears are made in any of the STRs. As already mentioned, hearing loss is not shown during service. At the May 2014 audiological examination the Veteran reported that he had tinnitus “for years.” The examiner noted “Veteran was evaluated at the West Palm Beach VAMC in August 2013. Veteran reported tinnitus onset as ‘the last few months,’ at that time.” Although the examiner does not state that tinnitus was or was not cause by military service, she does say that tinnitus is at least as likely as not related to the Veteran’s current hearing loss. With his NOD from August 2014 the Veteran also submitted a statement with a medical study discussing the relationship between tinnitus and hearing loss. The study says that 70 percent of people with hearing loss experience tinnitus, that tinnitus may not start until months after noise exposure, and he says that it is clear that “exposure to long term, high noise levels is a major factor in tinnitus.” An additional statement was submitted in June 2016 in which the Veteran contends that his noise exposure clearly demonstrates tinnitus was caused by service. He also states that he has no recollection of telling any VA examiner that his tinnitus began just a few months before, and that if he did it was a mistake because he probably could not hear the examiner’s question. He reiterates that the onset of tinnitus can be delayed once acoustic trauma occurs. As previously discussed, outpatient records from May 2017 show that the Veteran worked as an airline pilot and an aviation safety inspector after his time in service. Along with that information are reports of tinnitus in September and November 2014, but then the Veteran denied tinnitus in April 2015, November 2015, October 2016, and April 2017. No medical evidence has linked the Veteran’s tinnitus directly to service despite his 8 years as a helicopter pilot, working on naval vessels, and remaining flight qualified during Reserve service. Although the Veteran provides a medical treatise that states tinnitus can be delayed after acoustic trauma, the study he submits is solely on animals rather than humans, it also states that “tinnitus might be delayed by months,” in order for that study to support the Veteran’s tinnitus being service related he would have to show that tinnitus may not be onset for several years, in this case several decades. The study suggests a co-morbid relationship with a possible common cause but not that hearing loss causes tinnitus or the reverse. Also, evidence of working for the airline industry for decades is a possible reason for the onset of tinnitus. It must also be mentioned that in recent years the Veteran has denied tinnitus. The Veteran contends that he never told anyone that his tinnitus onset recently, but saying that ringing has been experienced “for years” is not enough to show that tinnitus began during or shortly after service. Medical evidence shows no complaints for tinnitus, it shows that the Veteran did say his tinnitus was onset just months prior to August 2013, his post-service occupation also involved noise exposure, and the medical opinion related his tinnitus to hearing loss which itself is not related to service. Since the Veteran experienced noise exposure for a long time after service, he did not report tinnitus until the past few years, and his tinnitus is related to a non-service connected disability the Board does not find that it is at least as likely as not that the Veteran’s tinnitus is due to service. Lastly, while tinnitus has been secondarily related to hearing loss this does not mean that tinnitus is secondary to service since hearing loss is not a service connected disability. Therefore, entitlement to secondary service connection is also denied. REASONS FOR REMAND Rheumatoid Arthritis Evidence that the Veteran has rheumatoid arthritis was submitted on June 26, 2014. No examination has been provided, and the Veteran contends that his rheumatoid arthritis is due to his exposure to designated herbicide agents (Agent Orange (AO)) while he was in Vietnam. It has been previously confirmed that the Veteran was exposed to AO. The Veteran submitted a statement in August 2014 that rheumatoid arthritis is rare, and that several doctors told him that AO exposure could be the cause of his rheumatoid arthritis. The Board cannot make a fully-informed decision on the issue of rheumatoid arthritis because no VA examiner has opined whether it is due to service, and particularly whether it could be the result of AO exposure. August 2014, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. These records could reveal what the Veteran has already relayed, that private doctors have told him that AO exposure caused his rheumatoid arthritis. The matter is REMANDED for the following action: 1. Afford the Veteran the opportunity to identify or submit any additional relevant evidence and argument in support of his claims on appeal. Request that he identify any other relevant treatment that he has received or is receiving, and request that he forward any additional records to VA to associate with the claims file or provide VA with authorization to obtain such records. Particularly, the records from private medical facilities linking the Veteran’s Agent Orange (AO) exposure to rheumatoid arthritis should be requested. Request that the Veteran identify these records, the treating physician, and the dates. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of rheumatoid arthritis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to AO. The Board wishes to point out that rheumatoid arthritis is not a presumptive disease under 38 C.F.R. § 3.309(e). This does not mean that the examiner cannot address herbicide exposure, in-fact, the Board specifically requests the examiner provide an opinion whether AO exposure is at least as likely as not the cause of the Veteran’s rheumatoid arthritis. 3. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The RO is to readjudicate the issue on appeal. If the benefit being sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Harner, Associate Counsel