Citation Nr: 18144729 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 08-26 143A DATE: October 25, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss manifested during service or within one year of separation, or is otherwise etiologically related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1965 to December 1968. Unfortunately, the Veteran passed away in November 2012, during the pendency of this appeal. The appellant is the Veteran’s surviving spouse, who has been properly substituted as a claimant. This matter is on appeal from a July 2008 rating decision. The Board previously remanded this claim in February 2012 and October 2016 for additional development. In May 2018, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). In July 2018, an expert medical opinion was obtained from a VA audiologist at VA Southern Nevada Healthcare System. As the actions specified in the most recent remand have been substantially completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the appellant’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the appellant nor her representative have advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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 of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 dB 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 the threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157 (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). The Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Board notes that the Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any 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). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for bilateral hearing loss The Veteran claimed entitlement to service connection for bilateral hearing loss, which he contended was related to his military service. He specifically asserted that he was exposed to hazardous aircraft noise, as well as mortar fire and machine gun fire, while carrying out his military duties as an air traffic controller at Bien Hoa Air Base in Vietnam. The Veteran’s exposure to acoustic trauma during service has been conceded. However, military noise exposure alone is not considered to be a disability; rather, the noise exposure must have resulted in a hearing loss disability. The Veteran’s service treatment records have been associated with the claims file, including his July 1965 enlistment examination and December 1968 separation examination. On both examinations, the Veteran denied any subjective hearing loss or ear problems. The service treatment records do not document any findings related to any complaints, treatment, or diagnosis for hearing problems during service. Service department audiometric readings prior to October 31, 1967, are presumed to be in American Standards Association (ASA) units and must be converted to International Standard Organization (ISO) units to be compared with later results. The Veteran’s service enlistment examination was conducted in July 1965. Further, although his separation examination was conducted in December 1968, the report specifies that that the “ASA51” audiometer was used. As such, both the enlistment and separation examinations must be converted from ASA to ISO units. When applying the conversion formula, at the time of the July 1965 enlistment examination (converted to ISO units), puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 10 5 10 15 10 20 LEFT 20 15 20 25 15 35 When applying the conversion formula, at the time of the December 1968 separation examination (converted to ISO units), puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 15 5 10 25 15 20 LEFT 15 10 20 30 15 20 The Veteran’s post-service treatment records show that the Veteran was first diagnosed with bilateral hearing loss at a private examination in May 2008. VA treatment records do not show that the Veteran complained of impaired hearing at any time prior to May 2008. In a May 2008 letter, the Veteran’s private doctor stated that the Veteran’s bilateral hearing loss is caused by noise-induced trauma during active military service. However, in its February 2012 remand, the Board determined that this private opinion is inadequate as it does not contain a medical rationale to support its conclusion and the examiner did not have access to the Veteran’s service treatment records. The Veteran underwent a VA examination in June 2008. The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 50 50 LEFT 25 30 40 50 50 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 percent in the left ear. As the examination showed auditory thresholds of 40 decibels or greater at the frequencies of 3000 and 4000 hertz in the right ear and at 2000, 3000, and 4000 hertz in the left ear, the audiogram establishes the Veteran had a hearing loss disability in each ear for VA purposes. See 38 C.F.R § 3.385. Upon examination, the Veteran reported that he initially noticed his hearing loss “a couple years ago.” The VA examiner determined that the Veteran’s bilateral hearing loss is less likely than not related to unprotected military noise exposure, noting that the Veteran’s enlistment and separation examinations both showed normal hearing in both ears and there were no significant threshold shifts during service. In its February 2012 remand, the Board found this examination to be inadequate because the VA examiner stated that the Veteran’s hearing was normal at all levels at both enlistment and separation, despite the Veteran’s service treatment records showing auditory threshold levels higher than 20 decibels in both ears on his enlistment and separation examinations. In fact, at enlistment, the Veteran was found to have, once converted to ISO units, puretone thresholds of 25 decibels at 3000 hertz and 35 decibels at 6000 hertz in his left ear. At separation, he was found to have puretone thresholds of 25 decibels and 30 decibels at 3000 hertz in his right and left ears respectively. These findings show that the Veteran had some degree of hearing loss during service. See Hensley, 5 Vet. App. at 157. The Board remanded to obtain another medical opinion. A VA medical opinion was obtained in December 2015. The VA audiologist opined that the Veteran’s hearing loss was less likely as not caused by or a result of noise exposure in the military. However, the opinion again relied on an erroneous finding that that the Veteran’s enlistment and separation audiograms indicated normal hearing bilaterally without significant threshold shift. The audiologist went on to note that there were no significant puretone thresholds above 20 decibels at enlistment or separation. In its October 2016 remand, the Board again found this medical opinion to be inadequate and requested a new opinion. Another VA medical opinion was obtained in March 2017. The VA audiologist opined that the Veteran’s bilateral hearing loss was not related to service on the basis that the Veteran’s hearing examinations on enlistment and separation showed hearing within normal limits, with no significant threshold shifts. However, the audiologist failed to convert the Veteran’s service audiograms from ASA units to ISO units. The examiner also noted that there is insufficient evidence within the medical community to establish that noise-induced hearing loss can develop much later in life, long after the cessation of noise exposure, and therefore, it is unlikely that delayed-onset hearing loss occurred in the Veteran’s case. Without an adequate medical opinion of record, the Board referred the case to VHA for an expert medical opinion. In July 2018, VHA obtained a medical opinion from a VA audiologist. The audiologist determined that it is less likely than not that the Veteran’s hearing loss manifested to a compensable degree within one year following separation, or was causally or etiologically related to his active duty service. The examiner based his opinion on a finding that the Veteran enlisted in the military with normal hearing with no significant threshold shift upon separation. The examiner acknowledged the threshold change during service at 3000 hertz in the left ear from 25 decibels to 30 decibels, however, stated that such a minimal threshold change was not significant and did not reflect a change in hearing. The examiner further explained that the first documented report of hearing loss was in 2008, many years after service, and that there is an insufficient scientific basis to conclude that permanent hearing loss attributable to noise exposure may develop long after such exposure. Therefore, such a prolonged delay in the onset of noise-induced hearing loss is unlikely in this case. After careful review of the subjective and clinical evidence of record, the Board finds that the preponderance of the evidence weighs against finding the Veteran’s bilateral hearing loss had its onset in service or within one year of separation, or is otherwise etiologically related to any disease, injury, or event that occurred during service. In making this determination, the Board has found the July 2018 VHA medical opinion to be the only adequate, competent medical opinion of record as to nexus regarding the Veteran’s bilateral hearing loss. The VHA opinion provided a fully articulated conclusion adequately supported by medical rationale and citations to the claims file and medical literature. Conversely, the VA examinations and medical opinions of record are based on an inaccurate factual premise, an incomplete review of the Veteran’s medical history, and do not provide a reasoned medical rationale for the conclusions reached. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (holding that conclusions that are factually accurate, fully articulated, and contain sound reasoning contribute to the probative value of a medical opinion). The Board acknowledges that the record contains a positive nexus opinion from the Veteran’s private audiologist, who, in a May 2008 letter, attributed his hearing loss to noise-induced trauma during service. However, the Board has found this medical opinion to be of limited probative value as a mere conclusory opinion, offered without sufficient supporting rationale or reference to the Veteran’s medical history, is insufficient to allow the Board to make an informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that the physician’s access to the claims folder and the Veteran’s history, and the thoroughness and detail of the opinion, are important factors for assessing the probative value of a medical opinion). For these reasons, the Board finds the July 2018 advisory opinion to be the most persuasive evidence of record, which ultimately weighs against a finding that the Veteran’s bilateral hearing loss was caused by or related to noise exposure during service. The Board has also considered whether service connection for bilateral hearing loss is warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Although the record does not contain audiological testing within one year of separation, the Board finds that the evidence of record fails to show that the Veteran’s bilateral hearing loss manifested to a compensable degree within one year of separation from service. The appellant has not provided any medical or lay evidence documenting hearing loss within one year of separation or continuous symptoms of hearing loss since service. Significantly, prior to his death, the Veteran never asserted that he had any continuity of symptomatology from the time of his discharge. In statements to VA, he stated that he did not have hearing loss in service and described his condition as “degenerative.” He reported to his VA examiner in June 2008 that he developed hearing loss “a couple years ago.” His medical records show he was first diagnosed with hearing loss in May 2008, 40 years after separation from service. This lengthy period of time without diagnosis or treatment weighs against the finding that bilateral hearing loss existed since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As such, the Board does not find evidence of continuity of symptoms in the years following service; therefore, service connection is not warranted on a presumptive basis or on the basis of continuity of symptomatology. Finally, the Board has considered both the appellant’s and the Veteran’s contentions that the Veteran’s exposure to acoustic trauma during service resulted in his bilateral hearing loss disability. Although lay persons are competent to provide opinions on some medical issues, determining the etiology of sensorineural hearing loss falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran was competent to report his symptoms, any opinion regarding whether the Veteran’s diagnosed sensorineural hearing loss is related to his service requires medical expertise that neither the appellant nor the Veteran have demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). As such, the Board assigns no probative weight to either the appellant’s or the Veteran’s assertions that his bilateral hearing loss disability was related to his military service. Accordingly, for the foregoing reasons, the Board finds that the preponderance of the evidence is against a grant of service connection for bilateral hearing loss. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for tinnitus is remanded. Unfortunately, the issue remaining on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that the appellant is afforded every possible consideration. In a September 2018 brief, the appellant, through her representative, set forth a new theory of entitlement, arguing that the Veteran’s tinnitus may have been secondary to his service-connected anxiety disorder. In support of her contention, the appellant cited to information provided by the American Tinnitus Association, which states that tinnitus can have non-acoustic causes such as depression, anxiety, and stress. The evidence presented and cited by the appellant raises medical issues that the Board is not competent to address. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, the Board finds that remand is required to obtain a VA medical opinion that addresses the issue of secondary service connection raised by the appellant. The matter is REMANDED for the following action: Forward the Veteran’s claims file, including a copy of this REMAND, to a VA examiner of appropriate expertise to provide an addendum opinion on the issue of secondary service connection. The examiner must review the claims file in its entirety and note that review in the report. Then, the examiner should provide an opinion as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus was caused by his service-connected anxiety disorder? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s tinnitus was aggravated (permanently increased in severity beyond its natural progression) by his service-connected anxiety disorder? In rendering the medical opinion, the examiner must adequately consider and address the evidence from the American Tinnitus Association, cited by the appellant in the September 2018 brief, which states that tinnitus may be caused by depression, anxiety, and stress. The examiner is reminding that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should set forth a complete rationale for the conclusion(s) reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel