Citation Nr: 18145702 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-53 212A DATE: October 30, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The competent and credible medical evidence does not support a finding that the Veteran’s current bilateral hearing loss is etiologically related to in-service noise exposure. 2. The competent and credible medical evidence does not support a finding that the Veteran’s current tinnitus is etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Air Force from August 1961 to December 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied the claims currently on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). An alternative method of establishing the second and third elements of service connection for those disabilities identified as “chronic” under 38 C.F.R. § 3.309 (a), such as sensorineural hearing loss, is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was “noted” during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that he has bilateral hearing loss directly related to hazardous noise exposure while serving as a weapons mechanic and working along the flight line while in the Air Force. The Board notes that the Veteran’s service records confirm a military occupational specialty (MOS) of weapons mechanic and show that he served on the flight line. Therefore, the Board finds that in-service noise exposure may be presumed. For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 record shows the Veteran has undergone audiometric testing during the claim period. Objective test results confirm that he has a current diagnosis of bilateral sensorineural hearing loss that may be considered a disability for VA purposes. Therefore, the Board finds that the Veteran meets the first criteria of service connection, a current disability. However, the evidence does not support a finding that the Veteran’s current bilateral hearing loss disability is etiologically related to active military service. The Veteran’s service treatment records (STRs) show he was afforded multiple audiometric tests during service. The Board notes that, prior to October 31, 1967, service department audiometric results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, where applicable, the ASA standards have been converted to ISO-ANSI standards. Conversion to ISO-ANSI units is accomplished by adding 15 decibels to the ASA units at 500 Hertz; 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz; and 5 decibels to the ASA units at 4000 Hertz. In this regard, the ASA pure tone thresholds as noted in the Veteran’s STRs are represented by the digit NOT contained in parentheses, while the converted ISO-ANSI pure tone threshold are contained in the parentheses. The Veteran’s August 1961 enlistment examination included audiometric testing. The Veteran is considered to be in sound condition upon entrance into service—that is, he did not have a hearing loss disability for VA purposes. At his August 1961 enlistment examination audiogram, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 (35) 20 (30) 20 (30) - - LEFT 20 (35) 20 (30) 20 (30) - - STRs contain another August 1961 audiogram dated four days after the Veteran’s enlistment examination audiogram. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -5 (5) -5 (5) -5 (5) 15 (20) LEFT 5 (20) -5 (5) 0 (10) -5 (5) -5 (0) The Veteran underwent another audiogram in April 1963. The pure tone threshold results, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 0 (10) 25 (30) LEFT 5 (20) 5 (15) 5 (15) 5 (15) 10 (15) The Veteran underwent another audiogram in January 1965. The pure tone threshold results, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -10 (0) -5 (5) 0 (5) LEFT 0 (15) -5 (5) -10 (0) -5 (5) -10 (-5) The Veteran underwent another audiogram in April 1965. The pure tone threshold results, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -10 (5) -10 (0) -10 (0) -5 (5) 0 (5) LEFT 0 (15) -5 (5) -10 (0) -5 (5) -10 (-5) Finally, the Veteran underwent an audiogram during his separation examination in November 1965. Pure tone threshold results, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -5 (5) -5 (5) 5 (10) LEFT 0 (15) -5 (5) -10 (0) 0 (10) -5 (0) In September 2012, the Veteran underwent a private audiological evaluation, which confirmed that the Veteran had bilateral sensorineural hearing loss by VA standards. The Veteran reported significant in-service hearing loss while working as an Air Force weapons mechanic, specifically testing guns and bombs on fighter aircraft. The Veteran also reported in-service noise exposure from working on a gunnery range. He reported consistent use of a headset for ear protection during this time and said he occasionally wore foam ear plugs when traveling on transport aircraft. The Veteran reported post-service work in a tile manufacturing plant, boat sales and repair operation, and a nursery, where there was excessive noise exposure without the use of ear protection. The Veteran also reported that he used to ride motorcycles without the use of ear protection. The Veteran stated that he started to notice bilateral hearing loss “over the past five years.” The examiner, without rationale, concluded that it was at least as likely as not that the Veteran’s bilateral hearing loss began secondary to military service. The examiner did not indicate whether she reviewed the Veteran’s STRs or any other military records. The Veteran was afforded a VA examination in November 2013. The examiner noted in-service noise exposure, post-service occupational noise exposure from owning a marina and retail nursery, and recreational noise exposure from carpentry and riding a motorcycle. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss but determined it was not related to service. The examiner cited to a study by the Institute of Medicine (IOM) for the proposition that the medical literature does not support the delayed onset of noise-induced hearing loss. The examiner reviewed the Veteran’s enlistment and separation examinations and noted that there was normal hearing upon discharge from service. Accordingly, the examiner concluded that because there was normal hearing upon discharge, and because medical literature does not support delayed onset of noise-induced hearing loss, the Veteran’s current hearing loss was less likely than not related to service. The Veteran underwent another private audiological evaluation in February 2015. He denied a history of hearing difficulties. The examiner indicated review of the Veteran’s DD 214, which showed that he served as an Air Force weapons mechanic and armorer. The Veteran reported that he was frequently exposed to the sound of jet engines, gunfire, and explosions while working on the flight line and test firing 20 mm cannons. He reported using hearing protection during that time. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and concluded that it was “as likely as not or at least possibly” due to his in-service noise exposure. However, the examiner further wrote that “a thorough review of [the Veteran’s] medical records (i.e. c-file) will be necessary to form a final medical opinion.” Though the Veteran later asserted that the February 2015 examiner reviewed all of his service treatment records, his assertion in this regard is directly contradicted by the contemporaneous written statement of the examiner in the February 2015 report. Given the conflicting medical evidence of record, the Board sought a VHA opinion concerning the Veteran’s claims on appeal. In a July 2018 opinion, a VA audiologist concluded the Veteran’s bilateral hearing loss was less likely than not incurred in or otherwise related to active military service. In reaching this conclusion, the audiologist noted that despite significant in-service noise exposure, the Veteran’s audiometric thresholds were within the range of normal limits on entry into service and at discharge, even when adjusted to the ISO-ANSI standard. The audiologist wrote, “[p]resumed exposure to hazardous noise is neither an injury nor a disease,” and that acoustic trauma could not be conceded based on exposure to hazardous noise alone. The audiologist reiterated the November 2013 VA examiner’s statements regarding the IOM study but added that some recent studies with rodents have caused some investigators to speculate that a delayed onset of neural, central, or cochlear changes may occur as a result of noise exposure. However, the audiologist cautioned that there are genetic and physiologic differences between humans and rodents, and that currently, the IOM report remains the most comprehensive review regarding the effects of noise exposure in the veteran population. The audiologist quoted from the IOM: 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 audiologist ultimately concluded that given the Veteran’s normal hearing at discharge, and no significant shift in thresholds from induction to discharge, the Veteran’s bilateral hearing loss was less likely than not related to active service. The Veteran has submitted several lay statements in support of his claim. In a November 2012 statement, the Veteran wrote that during service, he performed his duties on the flight line around operating jet aircraft engines, which entailed significant exposure to loud noises. In a December 2016 statement, the Veteran emphasized the fact that his MOS involved highly probably noise exposure. He also wrote that he wore hearing protection during the brief period he worked at a manufacturing plant, and that he was office manager for a law firm for 17 years—a significant period of time in a quiet environment. The Veteran also wrote that he consistently wore a helmet while riding his motorcycle, and that the helmet was a form of hearing protection. The Veteran noted that the IOM reported cited by the November 2013 VA examiner also concluded the viability of delayed recognition. In multiple statements, the Veteran contended that VA failed to apply Hensley v. Brown, in which the Court held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. at 155, 157 (1993). Overall, after considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for a bilateral hearing loss disability. The evidence shows the Veteran had normal hearing at discharge, and there was no significant shift in thresholds from induction into service to discharge. Though the Board concedes that the Veteran was exposed to hazardous noise in service, the Veteran reported consistent use of hearing protection while in service. Moreover, the most objective medical evidence from that period – audiograms - do not show that this exposure resulted in hearing loss. Rather, the evidence of record indicates the Veteran’s hearing loss occurred well after discharge from active service. Indeed, during his September 2012 private evaluation, the Veteran himself reported an onset of bilateral hearing loss only five years prior - nearly forty years after discharge. Further, the Veteran’s reported post-service history is suggestive of occupational and recreational noise exposure without hearing protection. As the Veteran has not reported chronicity of hearing loss symptomatology since discharge or within one year thereof, the provisions of 38 C.F.R. § 3.303 (b), 3.307, 3.309 discussed above, do not provide for a grant of service connection in this case. In reaching this decision, the Board has considered the Veteran’s lay testimony connecting his hearing loss with in-service noise exposure. However, while the Veteran is competent to report his exposure to loud noise in service, as well as symptoms and history of treatment, he has not been shown capable of making medical conclusions on complex issues such as the nature and etiology of his bilateral hearing loss. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board also notes that while the September 2012 and February 2015 private examiners provided positive nexus opinions, neither opinion was supported by a detailed rationale. The February 2015 examiner suggested that further review of the Veteran’s medical records was necessary. Ultimately, the Board finds the November 2013 VA examiner’s opinion and the July 2018 VHA opinion to be the most probative evidence of record concerning the nature and etiology of the Veteran’s hearing loss disability, and these opinions ultimately outweigh the Veteran’s contentions in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the expert’s knowledge and skill in analyzing the data, and the medical conclusion the expert reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this case, the examiner who performed the November 2013 VA examination and the audiologist who provided the July 2018 VHA opinion closely reviewed the Veteran’s claims file and relied on their medical training, skill, and accepted medical principles in reaching conclusions supported by detailed rationales. Additionally, their opinions and conclusions are consistent with the evidence of record. Therefore, based on the foregoing, the Board finds that entitlement to service connection for a bilateral hearing loss disability is not warranted. 2. Entitlement to service connection for tinnitus The Veteran also contends that he has tinnitus as a result of exposure to hazardous noise while in the military. The Veteran’s STRs are of record and are silent for complaints of or treatment for tinnitus or ringing in the ears. During his September 2012 private audiological evaluation, the Veteran reported that he began to experience bilateral tinnitus 15-20 years ago, and that it has increased in intensity over the years. The examiner diagnosed tinnitus and determined it was at least as likely as not secondary to the Veteran’s military service. However, the examiner did not provide a rationale. During his November 2013 VA examination, the Veteran reported that tinnitus had its onset during active service but could not recall a specific incident that preceded its onset. The examiner diagnosed tinnitus but concluded it was less likely as not caused by or a result of in-service noise exposure. In reaching this conclusion, the examiner noted the absence of complaints of tinnitus in the Veteran’s STRs. The examiner wrote that in the absence of an objectively verifiable noise injury, an association between claimed tinnitus and noise exposure could not be presumed. The examiner noted that tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise; however, “you would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury.” The examiner wrote that the IOM study never stated that tinnitus could result from undiagnosed noise injuries; rather, in most cases, tinnitus is accompanied by measurable hearing loss. The examiner recognized that the audiogram is an imperfect measurement, however it is accepted as the objective basis for determining noise injuries. In her August 2018 VHA opinion, a VA audiologist, upon review of the Veteran’s claims file, also concluded that the Veteran’s tinnitus was less likely than not incurred in or otherwise related to the Veteran’s active military service. The audiologist noted that despite presumed exposure to hazardous noise, the Veteran’s audiometric thresholds were within the range of normal limits, suggesting the Veteran did not experience acoustic trauma in service. The audiologist wrote that the Veteran’s complaints of tinnitus associated with military noise exposure were inconsistent with literature and research regarding noise-induced hearing loss and tinnitus. The audiologist explained that studies have shown that hazardous noise exposure has an immediate effect on hearing and does not have delayed onset, nor is it progressive or cumulative. Therefore, in the absence of an objectively verifiable noise injury, the association between the Veteran’s claimed tinnitus and noise exposure cannot be assumed to exist. The audiologist concluded that the Veteran’s tinnitus was at least as likely as not proximately caused by or aggravated by his bilateral hearing loss that resulted from reasons other than military service. Overall, after considering the evidence of record under the laws and regulation as set forth above, the Board concludes that the Veteran is not entitled to service connection for tinnitus. In reaching this decision, the Board has considered the Veteran’s lay testimony connecting his tinnitus with in-service noise exposure. However, as previously noted, the Veteran has not been shown capable of making medical conclusions on complex issues such as whether his tinnitus is etiologically related to in-service noise exposure. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board also notes that the Veteran has made inconsistent statements regarding the onset of his tinnitus, at first providing an onset of “15-20 years” prior to the September 2012 examination; later stating that onset was during military service. Ultimately, the Board finds the November 2013 VA examination and July 2018 VHA opinions to be the most probative evidence of record concerning the nature and etiology of the Veteran’s tinnitus, and these opinions ultimately outweigh the Veteran’s contentions in this regard. The November 2013 VA examiner and July 2018 VHA audiologist reviewed the Veteran’s claims file and relied on their medical training, skill, and accepted medical principles in reaching conclusions supported by detailed rationale. Additionally, their opinions are consistent with the evidence of record. Finally, the Veteran’s statements to the VA examiners do not reflect a competent and credible lay report of onset of tinnitus in service with continuity of symptomatology thereafter; or within a year of service discharge. Thus, presumptive service connection as a chronic disease, or through a demonstration of chronicity and continuity under 38 C.F.R. § 3.303 (b), 3.307 and 3.309 is not warranted. Based on the foregoing, the Board finds that entitlement to service connection for tinnitus is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel