Citation Nr: 1807097 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-04 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for sensorineural hearing loss of the left ear. 2. Entitlement to service connection for tinnitus. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Grace J. Suh, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1986 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In July 2014, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing; a transcript has been associated with the claims file. In June 2015, the Board issued a decision, in pertinent part, denying the Veteran's service connection claims for hearing loss of the left ear and tinnitus. He appealed that decision to the United States Court of Appeals for Veterans' Claims (Court). By an April 2016 Order, the Court, pursuant to a Joint Motion for Partial Vacatur and Remand (JMPVR), vacated the Board's June 2015 decision with respect to the aforementioned issues and remanded the matter for further action consistent with the JMPVR. In May 2017, the Board remanded this matter for further development; namely, to obtain treatment records from the West Roxbury VA medical center (VAMC) and an addendum VA medical opinion, each of which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that a Court or Board remand confers upon a veteran the right to substantial, but not strict, compliance with that order). FINDINGS OF FACT 1. While the Veteran presently has a hearing loss disability of the left ear, it did not manifest in service or within one year of separation from service, and there is no competent evidence linking it to his hazardous noise exposure in service. 2. The Veteran presently suffers from tinnitus, which first manifested in service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss of the left ear have not been met. 38 U.S.C. §§ 1111, 1112, 1113, 1131, 1132, 1133, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309(a), 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1111, 1112, 1113, 1131, 1132, 1133, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Hearing Loss of the Left Ear The Veteran contends that the hearing impairment of his left ear stems from his in-service exposure to hazardous noises. See January 2014 VA Form 9; July 2014 Board Hearing Transcript at 5-10. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. In that regard, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303(d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be granted on a presumptive basis for certain chronic diseases, such as sensorineural hearing loss, which has been recognized as an organic disease of the nervous system for VA compensation purposes. 38 U.S.C. § 1110, 1111, 1112, 1113, 1131, 1132, 1133, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A chronic disease may be presumptively service connected if it is shown as such in service or within the one year presumptive period under 38 C.F.R. § 3.307(a)(3) and it manifested again thereafter; if it is shown to have manifested to a compensable degree within one year of separation from service; or, if the evidence establishes chronicity and continuity of symptomatology post-service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In assessing the evidence of record, the Board recognizes the Veteran is competent to provide evidence regarding the lay observable symptoms of his hearing impairment. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that while a lay person is not competent to opine as to medical etiology or render medical opinions, they are competent to establish the presence of observable symptomatology). However, for VA compensation purposes, audiometric testing conducted by a state-licensed audiologist is required to diagnose hearing impairment. 38 C.F.R. § 4.85. Since there is no evidence of record establishing that the Veteran is a state-licensed audiologist, he is not competent to provide evidence regarding his hearing loss in terms of puretone thresholds and speech discrimination percentage. See Barr, supra; Jones v. West, 12 Vet. App. 460, 465 (1999) (holding that only those with specialized medical knowledge, training, or experience are competent to render a medical diagnosis). As a result, the Board must rely on the medical evidence of record in that regard. Irrespective of the theory of entitlement, there must be evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that in the absence of proof of a current disability, there is no valid claim). Here, an audiometric test conducted during a September 2013 VA examination confirms the Veteran has a current hearing loss disability of the left ear. See September 2013 Hearing Loss and Tinnitus VA Examination Report; Shedden, supra. The Board next examines the evidence of record to determine whether service connection may be granted on a presumptive basis. In this instance, during the July 2014 Board videoconference hearing the Veteran testified that his hearing impairment was present at the time of separation from service. July 2014 Board Hearing Transcript at 5. Furthermore, in a January 2014 Buddy Statement P.W. stated she has known him for the past 25 years; since approximately 1989, the same year he was discharged from service. During this time, she described that he has always had the volume on louder than normal and on many occasions she has had to repeat herself because he could not hear her. Contrary to their contentions, the audiometric test administered during the Veteran's separation examination yielded the following results: PURETONE THRESHOLDS 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 0 dBs 0 dBs -5 dBs 5 dBs 0 dBs Left Ear 10 dBs 0 dBs -5 dBs 15 dBs 15 dBs See March 1989 Report of Medical Examination. These results unequivocally demonstrate that his hearing was within normal auditory thresholds at each of the pertinent Hertz (Hz) frequencies at the time of separation. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting the auditory threshold for normal hearing is from zero to 20 decibels (dBs)). Moreover, the Veteran's hearing was evaluated multiple times throughout his service, and each time, he exhibited hearing within the normal auditory thresholds. See November 1986 Reference Audiogram; February 1988 Report of Medical Examination; September 1988 Hearing Conservation Data; see also February 1988 Report of Medical History (the Veteran expressly denied having or having had any ear, nose, or throat trouble, or hearing loss). Therefore, for all their lay observations, the medical evidence of record directly contradicts the onset of the hearing loss disability of his left ear in service. The Veteran has stated that he did not begin seeking treatment for his hearing impairment until 2013. July 2014 Board Hearing Transcript at 5. Nevertheless, in a February 2017 Statement in Support of Claim he averred that treatment records from the West Roxbury VA medical center (VAMC) from 1990 would support this claim. According to him, in 1990 he was hospitalized for four months following a motorcycle accident. During this time, he recalled that his hearing was evaluated. A careful review of the relevant West Roxbury VAMC treatment records confirms that he was hospitalized at the West Roxbury VAMC from July 24, 1990 to November 9, 1990 following a motorcycle accident, which occurred on July 10, 1990. However, they are negative for any audiometric test results. Of note, these records are silent as to any complaints of hearing loss in either ear. Instead, among these records, a July 1990 VA Inpatient Nutritional Screening/Assessment/Care Plan expressly identified only mobility as a problem he faced among a pre-set list of physical conditions, which included auditory problems; and an October 1990 VA Recreation Service Database and Assessment noted he had normal auditory function. Thus, the treatment records from the West Roxbury VAMC contradict the Veteran's statements. As another matter, although in the February 2017 Statement in Support of Claim the Veteran explained that he was unable to seek treatment for his hearing impairment upon separation from service because he did not have health insurance coverage, the Board notes that a May 2017 VA examiner observed that he did not seek medical attention for hearing impairment until 2013; 14 years after he began receiving regular medical care at VA facilities and 24 years post-separation. See May 2017 VA Medical Opinion. Given the contradictions outlined above between the Veteran's and P.W.'s lay statements and the other evidence of record, the Board accords their lay statements less probative weight as to the onset of his hearing impairment in service or within one year post-separation. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Even if the Board accepts that their lay statements sufficiently demonstrate the Veteran's hearing impairment manifested within one year of separation from service, there is no competent evidence of record showing it manifested to a compensable degree. Consequently, the Board finds the preponderance of the evidence is against presumptive service connection as a chronic disease because neither manifestation in service, manifestation within one year of separation from service to a compensable degree, nor chronicity and continuity of symptomatology can be substantiated. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). Nevertheless, service connection on a direct basis remains available. In this regard, the Board acknowledges the evidence of record sufficiently establishes the Veteran was exposed to hazardous noises in service. According to his DD Form 214, his military occupational specialty was as a medium helicopter repairman; he earned aircraft crewman badge; and was acknowledged to be an M16 rifle marksman, hand grenade expert, and a 38 caliber pistol expert. Thus, the in service incurrence element has been met. See Shedden, supra. Necessarily, this claim turns on whether the nexus element can be satisfied. In support of this claim, the Veteran submitted a Report Documentation Page regarding an U.S. Army Aero Medical Research Laboratory communication and noise hazard survey of the CH-47D crewmembers. According to the abstract, U.S. Army CH-47D cargo helicopter crewmembers were exposed to high levels of noise on a routine basis. The study revealed the noise levels experienced by these crewmembers exceeded that of service members exposed to other army rotary-wing aircrafts. The substantive findings of the report disclosed 17 crewmembers were studied, which it recognized was a small population of the crewmembers. Overall, the study concluded that most of the crewmembers attempted to compensate for the noise environment by wearing single hearing protection (helmet earcups) only, and maximizing the radio volume controls settings. The decision not to wear double hearing protection put the crewmembers, particularly crew chiefs, at risk for eventual permanent hearing damage. This resulted in 40 percent of the crewmembers sustaining hearing loss. The Board is cognizant the Veteran's testimony during the July 2014 Board videoconference hearing, is consistent with the complaints of the crewmembers studied. July 2014 Board Hearing Transcript at 9. However, no time did he identify himself among the crewmembers studied. Even if he were, his service treatment records (STRs) would indicate he was among the 60 percent of crewmembers who did not demonstrate hearing loss during the study. As such, the probative value of the survey is limited to the already established in service incurrence element. Following audiometric testing during the September 2013 examination, the VA examiner opined it was at least as likely as not the Veteran's bilateral hearing loss was caused by or otherwise related to his service. September 2013 Hearing Loss and Tinnitus VA Examination Report. In reaching this conclusion, the VA examiner expressly noted his STRs were not available for review, and that the opinion was based solely based on "indirect" evidence; his lay statements, and current examination findings. Id.; see also June 2015 Board Decision (denied the Veteran's service connection claim for a hearing loss disability of the right ear because the auditory thresholds at the requisite frequencies for VA compensations purposes had not been met). In view of the fact the Veteran's STRs were eventually made available for review and were considered in ensuing VA medical opinions, and his lay statements are not corroborated by the same, the Board accords this nexus opinion no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that an opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the disability is a fully informed one) citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Within a month, the Veteran's previously unavailable STRs were received and reviewed by another VA examiner. October 2013 VA Medical Opinion. Upon review, the VA examiner rendered a negative nexus opinion. According to this VA examiner, five separate audiometric test results showed his hearing remained within normal limits throughout service, and no significant auditory threshold shifts were noted between his enlistment examination and separation examination. For this reason, the VA examiner opined that it was less likely than not his bilateral hearing loss was caused by or otherwise related to his hazardous noise exposure in service. As the VA examiner's solely relied on the absence of complaints, treatments, or diagnosis in service for hearing loss the Board finds the October 2013 VA Medical Opinion is inadequate. See Ledford v. Derwinksi, 3 Vet. App. 87 (1992) (holding that that the absence of complaints or treatments in service for hearing is not fatal to a claim for service connection for the same); see also June 2016 Board Decision (suggesting the VA examiner may have relied on an inaccurate factual premise). In October 2016, the RO obtained a second VA medical opinion. October 2016 VA Medical Opinion. At that time, a third VA examiner opined it was less likely than not the Veteran's hearing loss of the left ear was caused by or otherwise related to his hazardous noise exposure in service. The VA examiner noted his enlistment and separation examinations showed his hearing was within normal limits upon examination without any significant auditory threshold shifts. As such, there was no evidence of acoustic trauma. The VA examiner explained that with noise induced hearing loss, damage is typically immediately present and measureable. With respect to whether the onset of the Veteran's hearing could have been delayed, the VA examiner cited a 2006 report by the Institute of Medicine, which concluded that based on the anatomical and physiological data available on the recovery process following noise exposure it was unlikely that permanent hearing loss directly attributable to noise exposure would develop long after the exposure. Furthermore, the VA examiner believed that if his hearing loss onset within one year of his separation from service, he would have likely sought medical treatment earlier, but the claims file was negative for any such evidence. Then, in May 2017, in another VA medical opinion, the October 2016 VA examiner once more opined that it was less likely than not the Veteran's hearing loss of the left ear was caused by or otherwise related to his hazardous noise exposure in service. May 2017 VA Medical Opinion; see also May 2017 Board Decision (remanding for clarification of the October 2016 VA Medical Opinion finding there was no evidence of acoustic trauma). In support, the VA examiner reiterated that there was no evidence of hearing loss in service. Even though the VA examiner acknowledged he was exposed to hazardous noises in service, the VA examiner also noted multiple audiometric tests in service confirmed his hearing was within normal limits. Therefore, there was no evidence of acoustic trauma. If he sustained acoustic trauma from the hazardous noise exposure in service, it would have been reflected in the audiometric tests in service. Again, the VA examiner pointed to the 2006 report by the Institute of Medicine. As another matter, the VA examiner observed that despite the fact he has been seeking regular medical care at VA facilities for over 14 years, he did not seek medical attention for hearing impairment until 2013. Most recently, the same VA examiner rendered another VA medical opinion in October 2017. October 2017 VA Medical Opinion. The VA examiner reaffirmed the prior negative nexus opinions. The VA examiner clearly stated his exposure to hazardous noise in service was not in dispute. Nevertheless, hazardous noise exposure by itself does not establish a nexus. The VA examiner reiterated that there were no significant auditory threshold shifts between his audiometric tests in service. As a result, there was no evidence of acoustic trauma in service to suggest his hearing impairment began then. In a January 2018 Information Hearing Presentation, the Veteran's representative posited the argument that the VA medical opinions continued to be inadequate because they did not provide an alternative etiology for his claimed hearing impairment of the left ear and tinnitus. While the Board acknowledges that when the VA undertakes to provide him with a VA examination that it must provide him with an adequate one, there is no requirement that an alternative etiology must proffered in the event of a negative nexus opinion. An adequate VA examination is one in which due consideration is given to the veteran's prior medical history and examinations; describes the disability in sufficient detail so that the evaluation of the disability is a fully informed one; considers whether the veteran's lay assertions presented sufficient evidence of the etiology of his claimed disability; and contains a clear conclusion, supporting data, as well as a reasoned medical explanation connecting the two. See Stefl, supra; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The October 2016, May 2017, and October 2017 VA Medical Opinions which were rendered by the same VA examiner, when taken together, appropriately considered and weighed the Veteran's lay statements. The VA examiner acknowledged his exposure to hazardous noises in service. Nonetheless, the VA examiner distinguished between exposure to hazardous noise and acoustic trauma, which may result from exposure to such noise. Id.; cf. February 2017 Informal Hearing Presentation (the Veteran's representative argued the Board previously conceded he sustained acoustic trauma in service); cf. also June 2016 Board Decision (the Board conceded the Veteran's in service noise exposure, not the presence of acoustic trauma). In this regard, of importance to the VA examiner were his hearing evaluations in service, which showed that his hearing remained within normal auditory thresholds, even at the time of separation after nearly three years of exposure to hazardous noises. As such, there was no evidence of acoustic trauma, the damage from which is typically immediately measureable following hazardous noise exposure. Moreover, the VA examiner questioned the credibility of the Veteran's lay statements in light of the fact that he alleged to have suffered from hearing loss for more than two decades, but failed to seek treatment until 2013, more than 14 years after he established medical care through the VA. Id.; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, but also recognized the Board may weigh the absence of contemporaneous medical evidence against the lay evidence of record). Even so, the VA examiner considered the possibility of delayed onset hearing loss. However, the VA examiner noted there was insufficient medical evidence to support the development of permanent hearing loss well after noise exposure in light of the 2006 report by the Institute of Medicine, which examined anatomical and physiological data available on the recovery process following noise exposure and concluded it was unlikely that permanent hearing loss directly attributable to noise exposure would develop long after the exposure. The Board notes the Institute of Medicine is now known as The Health and Medicine Division. See The Health and Medicine Division, THE NATIONAL ACADEMIES OF SCIENCES, ENGINEERING, AND MEDICINE (Jan 16, 2018, 4:13 PM), http://www.nationalacademies.org/hmd/About-HMD.aspx. It is a part of the National Academies of Science, a non-profit institution that provides independent, objective analysis and advice to the government and private sectors to assist them in making informed health and public policy decisions related to science, technology, and medicine by providing evidence on which they can rely. For the reasons stated above, the Board finds the October 2016, May 2017, and October 2017 VA Medical Opinions are not only adequate, but highly probative as well. They are afforded more weight than all of the other evidence of record. Accordingly, the Board finds the preponderance of the evidence is against the Veteran's service connection claim for hearing loss of the left ear. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; see also Fagan, supra. II. Service Connection for Tinnitus The Veteran contends that his tinnitus also stems from his in service exposure to hazardous noises. See January 2014 VA Form 9; July 2014 Board Hearing Transcript at 5. Unlike hearing loss, tinnitus is a condition capable of lay observation and diagnosis. Thus, the Veteran's lay statements are competent in these respects. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); see also YT v Brown, 9 Vet. App. 195, 196 (1996) (describing tinnitus as noise in the ears, such as ringing, buzzing, roaring, or clicking). As there is no evidence to the contrary, the Board accepts the Veteran's lay statements that he presently suffers from tinnitus as sufficient evidence of a current disability. See Brammer, supra; Shedden, supra. Further, the Board notes in his January 2014 VA Form 9 the Veteran asserted that he experienced some ringing in his ears after every flight in service. January 2014 VA Form 9. Whereas audiometric testing throughout service and at the time of separation clearly rebutted his claim that his hearing loss manifested in service, there is no similar evidence with respect to this claim. Despite the Veteran's vague statement during the September 2013 VA examination that his tinnitus has been present for years, the Board finds it is not necessarily inconsistent with his statement in the January 2014 VA Form 9 that he experienced some ringing in service and his July 2014 Board videoconference hearing testimony that it was present at the time he separated from service. September 2013 Hearing Loss and Tinnitus VA Examination Report. Furthermore, while he expressly denied having or having had any ear, nose, or throat trouble, or hearing loss in a February 1988 Report of Medical History during a flight examination, the Board notes there is no similar report accompanying the March 1989 Report of Medical Examination from his separation examination. As a result, there is no evidence contradicting his claim insofar as the year following the February 1988 flight examination is concerned. To the extent there are any discrepancies among his lay statements, the Board accords him the benefit of the doubt, and finds his tinnitus first manifested in service. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; see also Fagan, supra. At this juncture, the Board notes that service connection for tinnitus may also be granted on a presumptive basis as a chronic disease, as it has also been recognized as an organic disease of the nervous system for VA compensation purposes. 38 U.S.C. § 1110, 1111, 1112, 1113, 1131, 1132, 1133, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As noted above, a chronic disease may be presumptively service connected if it is shown as such in service or within the one year presumptive period under 38 C.F.R. § 3.307(a)(3) and it manifested again thereafter provided that it is not clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Even though the Board acknowledges the October 2016, May 2017, and October 2017 VA Medical Opinions referenced above each included a negative nexus opinion with respect to this claim as well, it is inconsequential because there is no nexus element to satisfy for presumptive service connection. Of importance, none of the VA examiner's contested his assertion that he presently suffered from tinnitus. Further, neither the September 2013 Hearing Loss and Tinnitus VA Examination Report nor October 2016, May 2017, or October 2017 VA Medical Opinions set forth any intercurrent causes for his tinnitus. Consequently, irrespective of whether the Veteran's tinnitus was caused by his hazardous noise exposure in service, the manifestation of tinnitus for the first time in service and its continued or subsequent manifestation following service without a clear intercurrent cause permits service connection on a presumptive basis as a chronic disease. 38 C.F.R. §§ 3.303(b), 3.304(b), 3.307(a), 3.309(a); see also February 1986 Report of Medical Examination (noted no abnormalities upon clinical evaluation, other than scars and mild acne, at the time of the Veteran's enlistment); February 1986 Report of Medical History (the Veteran reported that he was in good health, and denied having or having had any ear, nose, or throat trouble, or hearing loss at the time of enlistment). Notwithstanding the Board's denial of the Veteran's service connection claim for hearing loss of the left ear, the Board finds service connection for tinnitus is not inapposite because they are separate and distinct disabilities. See Mozingo v. Shinseki, 26 Vet. App. 97, 104-05 (2012). Even though he contends that both are caused by his hazardous noise exposure in service, he has never asserted that his tinnitus is a symptom of his hearing loss. More importantly, there is no competent evidence of record confirming that his tinnitus is a symptom of his hearing loss. ORDER Service connection for sensorineural hearing loss of the left ear is denied. Service connection for tinnitus is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs