Citation Nr: 18153122 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-47 469 DATE: November 27, 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 Veteran’s right ear hearing loss is not etiologically related to an in-service injury, event, or disease, to include his presumed in-service noise exposure. 2. The Veteran’s left ear hearing loss is not etiologically related to his active duty service, and any preexisting high frequency hearing loss was not permanently aggravated beyond its natural progression by his active duty service. 3. The Veteran’s tinnitus is not etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.159, 3.303, 3.304, 3.306, 3.309 (2017). 2. The criteria for entitlement to service connection for tinnitus have not been met. U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 through January 1971. Service Connection 1. Entitlement to service connection for bilateral hearing loss The Veteran claims entitlement to service connection for bilateral hearing loss. Specifically, he asserts that he was exposed to rifle fire, machine guns, mortars, grenades, artillery fire, helicopters, and heavy artillery while on active duty. It is not in dispute whether the Veteran was exposed to noise while on active duty or whether he has a current hearing loss disability for VA purposes. Accordingly, the Board turns to the dispositive issue of nexus. As will be discussed further below, there is evidence the Veteran’s left ear hearing loss preexisted his active duty service. Accordingly, the Board will address the Veteran’s right and left ear hearing loss in separate discussions. Right Ear Hearing Loss Initially, the record does not reflect the Veteran was diagnosed with right ear hearing loss until June 2014. Therefore, the record does not reflect that the Veteran was diagnosed with right ear hearing loss to a compensable degree within one year of separation from active duty. Thus, the presumptive service connection provision of 38 C.F.R. §§ 3.307(a)(3) and 3.309(a) for chronic disabilities are not applicable. The Veteran’s service treatment records reflect he underwent an audiological examination in May 1968. When evaluating audiograms performed in the 1960s, it is important to note that there was a change in how such results were reported. Prior to 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Standards Organization – American National Standards Institute (ISO-ANSI) standards. Historically, the Board has considered that since the military adopted ISO-ANSI standards as of November 1, 1967, any military audiograms conducted prior to November 1967 would be converted from ASA to ISO-ANSI units. However, recent historical research has revealed that the conversion date of November 1, 1967, may not have been consistent among all military branches. Therefore, unless it can be determined by looking at the audiogram whether it was conducted using ASA or ISO-ANSI standards, the Board’s policy is to assume that service department audiometric test results prior to January 1, 1967, were reported in ASA standards, and that audiometric test results since December 31, 1970, were reported in ISO-ANSI standards. For the period between January 1, 1967 and December 31, 1970, the Board will consider the data under both ASA and ISO-ANSI standards (unless the standard used is clearly indicated) and rely on the unit measurements most favorable to the Veteran’s appeal. For clarity, the ASA units are contained in parentheses below. The results of audiometric testing reflected the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20(5) 5(-5) 5(-5) N/A 5(0) The results of the May 1968 hearing test reflected the Veteran’s hearing acuity was normal in his right ear under both the ASA and the ISO-ANSI standards. See 38 C.F.R. § 3.385. The Veteran underwent a second audiological examination in September 1970 prior to his separation from active duty. The results of audiometric testing reflected the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15(0) 10(0) 10(0) N/A 5(0) The results of audiometric testing reflect the Veteran had normal hearing acuity for VA purposes in September 1970. The Veteran was afforded a VA examination to determine the etiology of his hearing loss in October 2015. He reported experiencing bilateral hearing loss since 1970, and that he had difficulty hearing conversations in the presence of background noise and had trouble hearing his wife when she spoke to him. The Veteran had no post-service occupational noise exposure, but he did report recreational noise exposures of hunting, and use of lawn equipment, chainsaws, and power tools with inconsistent use of hearing protection. For the Veteran’s right ear, the examiner opined it was less likely than not that the Veteran’s hearing loss was etiologically related to his active duty service because the Veteran’s right ear hearing acuity was normal when he entered service, and his separation examination reflected there were no Occupational Safety and Health Administration (OSHA) or National Institute of Safety and Health (NIOSH) shifts indicating any significant, permanent decrease in his hearing sensitivity. Additionally, the Veteran’s service treatment records were silent for any head injury, acoustic trauma, hearing loss, or other ear conditions, and his post-service medical records indicated there was no continuity of care, as he did not seek treatment for hearing loss until 43 years after separation from active duty. In support of her opinions, the examiner noted that hearing loss does not occur after separation from active duty service, but is immediate. In this case, the Veteran had normal hearing noted at separation. The examiner noted it was her understanding that, although there are some medical conditions that occur delayed after exposure to a hazard, hearing loss is not one of those conditions. Hearing loss from hazardous noise is immediate, happing during military noise exposure. She cited a 2002 American College of Occupational and Environmental Medicine position paper on noise-induced hearing loss that stated most scientific evidence indicates that previously noise-exposed ears were not more sensitive to future noise exposure, and that hearing loss due to noise does not progress once the exposure to noise is discontinued. The examiner also discussed the Institute of Medicine’s statement that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after noise exposure. Based on the objective evidence of the Veteran’s audiograms, there was no evidence on which to conclude that his hearing loss was caused by or a result of military service, including noise exposure. There is no persuasive evidence that the Veteran’s right ear hearing loss is etiologically related to his active duty service. The Board finds the October 2015 VA examination to be of probative evidentiary value, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner thoroughly reviewed the Veteran’s service medical records and considered his lay statements regarding his in-service and post-service noise exposure before opining that the Veteran’s right ear hearing loss was not related to his active duty service because his hearing was noted to be normal bilaterally at separation. The examiner supported her opinion with a discussion of the evidence contained in the claims file and a discussion of pertinent medical literature concluding there was no scientific basis for delayed onset hearing loss following remote military noise exposure. The Board notes that the Veteran asserted in a January 2016 statement that because he is right handed, he should have demonstrated some right-sided hearing loss after daily use of a firearm on his right side. However, the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The October 2015 VA examiner noted that left ear hearing loss would be consistent with a person who fired weapons with his right hand. Consequently, the Board gives more probative weight to the October 2015 VA examination report. Left Ear Hearing Loss As noted above, it is unclear whether the military audiograms were recorded in using ASA units or ISO-ANSI units, and the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. The Veteran’s service treatment records reflect he underwent an audiological examination in May 1968. The results of audiometric testing reflected the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 LEFT 20(5) 10(0) 5(-5) N/A 40(35) The results of the May 1968 hearing test reflect that, when considered under the ASA units, the Veteran did not have a hearing loss disability for VA purposes noted at entrance. See, McKinney v. McDonald, 28 Vet. App. 15, 23, 27-38 (2016) (citing Hensley v. Brown, 5 Vet. App. 155, 157 (1993)) (“the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss”). However, when considered under the ISO-ANSI units, the Veteran had a puretone threshold of 40 decibels at 4000 Hertz, which constitutes a hearing disability for VA purposes noted at entrance to active duty. The Board will consider both the possibility that the Veteran did not have a hearing loss disability in the left ear noted at entrance and was thus presumed sound, and that he did have a left ear hearing loss disability noted at entrance, triggering consideration of aggravation. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304, 3.306. The Veteran underwent a second audiological examination in September 1970 prior to his separation from active duty. The results of audiometric testing reflected the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 LEFT 15(0) 10(0) 10(0) N/A 5(0) The results of audiometric testing reflect the Veteran had normal left ear hearing for VA purposes in September 1970. The Veteran was afforded a VA examination to determine the etiology of his hearing loss in October 2015. The examiner noted he entered military service with preexisting high frequency left ear hearing loss. However, the examiner opined there was no way to quantify aggravation of his preexisting left ear hearing loss because, based on the separation audiogram, the Veteran separated with normal hearing acuity. The examiner opined that the Veteran’s current left ear hearing loss was consistent with his history of hunting, and was less likely than not related to his active duty service because his separation examination reflected his hearing was normal, his service medical records were otherwise silent for any head injury, acoustic trauma, hearing loss, or other ear conditions, and he did not seek treatment for hearing loss until 43 years following his active duty service, therefore there was no continuity of care. The examiner further discussed pertinent medical literature, outlined above, that reflected there was no scientific basis for delayed-onset hearing loss. Based on the objective evidence of the Veteran’s audiograms, the examiner found no evidence on which to conclude that his hearing loss was caused by or a result of military service, including noise exposure. There is no persuasive evidence that the Veteran’s left ear hearing loss was caused or aggravated by his active duty service, to include noise exposure from weapons fire. The Board finds the October 2015 VA examination to be of probative evidentiary value, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner thoroughly reviewed the Veteran’s service medical records, noting his preexisting left ear high frequency hearing loss, and considered his lay statements regarding his in-service and post-service noise exposure before opining that there was no evidence that his preexisting left ear hearing loss was aggravated by his active duty service because his hearing was noted to be normal bilaterally at separation. The examiner supported her opinions with a discussion of the evidence contained in the claims file and a discussion of pertinent medical literature concluding there was no scientific basis for delayed onset hearing loss following remote military noise exposure. Accordingly, regardless of whether ASA or ISO-ANSI units are considered, there is no evidence the Veteran’s hearing loss was caused or aggravated by his active duty service. Assuming the Veteran did not have a left ear hearing loss disability noted on his May 1968 entrance examination, there is no persuasive evidence his hearing loss is etiologically related to his active duty service. Moreover, when considering the Veteran’s May 1968 entrance examination under ISO-ANSI units, there is no evidence his preexisting left ear hearing loss disability was aggravated by his active duty service, as his hearing was normal at separation. The Board notes that the Veteran submitted a lay statement in January 2016 asserting that his September 1970 separation audiogram had been fabricated. In support of this contention, he claimed that he did not recall undergoing any hearing test when he left service in January 1971, the 1970 form appeared hastily completed, and the location and date of the testing was undocumented. The Board does not find this argument to be persuasive. The separation examination is clearly date stamped September 23, 1970 and signed at the bottom. The Veteran also does not claim that he did not undergo a separation physical examination at all, and does not dispute any of the other physical findings noted on the two-page document. Just because the Veteran does not specifically recall undergoing a hearing test in September 1970, three months prior to his actual separation from active duty, does not automatically mean he did not undergo one at all. There is simply no evidence, beyond the Veteran’s unsupported assertions, that his September 1970 audiometric findings were fabricated after he left the service. While the Veteran believes his left ear hearing loss is related to an in-service injury, event, or disease, including in-service noise exposure, he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2015 VA examination report. The elements for entitlement to service connection for bilateral hearing loss have not been met. Accordingly, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus. Specifically, he asserts that he has experienced ringing in his ears since his active duty service. The Board finds there is no persuasive evidence that the Veteran’s tinnitus is related to his active duty service, to include in-service noise exposure. Service treatment records are silent for any complaints of, or treatment for, tinnitus. Post-service treatment records reflect he did not report experiencing any tinnitus until July 2015. Even though he reported experiencing hearing loss due to noise exposure in service to his audiologist in June 2014, he denied experiencing any tinnitus at the time. In July 2015, the Veteran reported experiencing a low-pitched ringing noise with onset during noise blasts in Vietnam. The Veteran was afforded a VA examination to determine the etiology of his tinnitus in October 2015. He reported constant ringing in his head since 1970, and that it sounded like crickets. The examiner opined that it was at least as likely as not that the Veteran’s tinnitus was etiologically related to his non-service-connected hearing loss because tinnitus was a known symptom associated with hearing loss and opined it was less likely than not that his tinnitus was directly related to in-service noise exposure because his hearing was normal at separation and, as discussed thoroughly above, there is no basis for delayed onset hearing loss. There is no persuasive evidence the Veteran’s tinnitus is etiologically related to his active duty service. Although tinnitus is a type of disorder associated with symptoms capable of lay observation, the Board does not find the Veteran credible to report the onset of his symptoms. The Veteran expressly denied experiencing tinnitus during his initial audiology visit in June 2014. There is no evidence he reported tinnitus to his VA audiologist until July 2015, over a year after his initial denial of tinnitus and a mere two months prior to filing his claim for benefits. The Court has determined the Board may properly assign more probative value to lay statements in contemporaneous medical records than subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Accordingly, the Board finds the June 2014 denial of tinnitus more probative than his current statements that he experienced tinnitus since active duty service made in the course of filing a claim for benefits. The Board finds the August 2016 VA examination highly probative because the conclusion is supported by medical rationale and is consistent with the verifiable facts regarding the Veteran’s contentions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). After conducting a full hearing test and reviewing the Veteran’s service treatment records, the examiner opined that the Veteran’s tinnitus was not directly related to his active duty noise exposure, but was most likely related to his non-service-connected bilateral hearing loss. There is no other evidence in the claims file that relates the Veteran’s tinnitus directly to his active duty service. As there is no evidence that his tinnitus is related to active duty service, and he is not service connected for bilateral hearing loss, entitlement to service connection is not warranted. The elements for service connection for tinnitus have not been met. Accordingly, service connection for the claimed disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert supra, at 53. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel