Citation Nr: 19180304 Decision Date: 10/22/19 Archive Date: 10/22/19 DOCKET NO. 14-37 304 DATE: October 22, 2019 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 bilateral hearing loss was not incurred in service or for many years thereafter and is not otherwise related to service. 2. The Veteran’s tinnitus was not incurred in service or for many years thereafter and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1975 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board denied the Veteran’s claim for service connection for tinnitus and remanded his claim for service connection for bilateral hearing loss for additional development. The Veteran appealed the denial of service connection for tinnitus to the United States Court of Appeals for Veterans Claims (Court), and in May 2019, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed the Board’s decision should be vacated and remanded for additional development. Both of the Veteran’s claims have now been returned to the Board for further appellate consideration. At the outset, the Board notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has been diagnosed with bilateral hearing loss and tinnitus. The record shows he served as a cannon crewmember during service, and on this basis, VA has conceded in-service noise exposure. The Veteran contends his bilateral hearing loss and tinnitus are related to his in-service noise exposure. The record shows the Veteran has provided conflicting statements with regard to the date of onset of his hearing loss and tinnitus. In an October 2003 VA examination report, it was documented the Veteran reported hearing loss since service, and tinnitus beginning in approximately 1992 or 1993. A January 2013 VA examination reported documented the Veteran’s report that his tinnitus had its onset in approximately 2005. In a September 2015 correspondence, the Veteran’s representative relayed the Veteran’s contention that he had experienced tinnitus since 1991. A review of the Veteran’s service treatment records (STRs) shows they are absent for any complaints, treatment, or diagnosis relating to hearing loss or tinnitus. Hearing loss and ringing in the ears are first documented in private post-treatment records dated in August 2006 and December 2008, respectively. As noted above, the Veteran was afforded VA examinations in October 2003 and January 2013. Both examiners diagnosed bilateral hearing loss and tinnitus, but both opined that neither condition was related to the Veteran’s service. The Board and the Court, however, in their May 2018 remand (addressing hearing loss) and May 2019 Order (addressing tinnitus), respectively, determined that the VA examiners’ opinions were inadequate for adjudication purposes. The Veteran was afforded an additional VA examination in March 2019. The examiner diagnosed bilateral hearing loss and tinnitus. She noted the Veteran’s assertions that he had begun experiencing both hearing loss and tinnitus approximately ten years prior to the examination. Ultimately, the examiner opined that it was less likely than not that the Veteran’s hearing loss or tinnitus had their onset during or were related to the Veteran’s service. Regarding hearing loss, the examiner noted the Veteran had normal auditory thresholds at entrance and separation without significant decrease beyond normal progression and test/re-test variability. As such, she stated, hearing loss caused by or as a result of an event in military service could be ruled out by comparison of the audiograms. The examiner further noted the Veteran had not reported any hearing difficulties during service or at discharge, and she cited medical literature for the proposition that noise-induced hearing loss generally occurs at the time of the exposure, and not many years later. As such, she stated the Veteran’s hearing loss, reported thirty years after service, was not consistent with noise-induced hearing loss. Regarding tinnitus, the examiner first noted the Veteran did not correlate the onset of his tinnitus to military service or military noise exposure, but instead, to the same time period as the post-military onset of his hearing loss. She again noted there was no hearing loss during service. On these bases, she stated the Veteran’s tinnitus was not consistent with noise-induced tinnitus and was more likely related to the same etiology that was causing his post-military hearing loss. The Board notes that the March 2019 VA examiner indicated the Veteran’s puretone threshold results on examination were inadequate for rating purposes. The issue before the Board, however, is not the severity of the Veteran’s already-diagnosed hearing loss. Instead, the Board must determine whether the hearing loss had its onset during or is otherwise related to the Veteran’s service. The Board also acknowledges the March 2019 VA examination report and opinion discussed above pre-date the May 2019 JMR, which determined a new examination and opinion should be obtained in relation to the Veteran’s claim for service connection for tinnitus. Indeed, the March 2019 examination was obtained pursuant to that portion of the Board’s May 2018 decision that remanded the Veterans claim of entitlement to service connection for bilateral hearing loss. Nevertheless, under these circumstances, the Board finds that the deficiencies in the October 2003 and January 2013 VA examination reports which formed the basis of the parties’ JMR and the Court’s Order are cured by the March 2019 examination report, even though it pre-dates the JMR, as the Board now has an adequate decision upon which to adjudicate the Veteran’s claims. Upon a thorough review of the foregoing, and after careful consideration, the Board has determined that a preponderance of the evidence weighs against the Veteran’s claims. In this regard, the Board notes the March 2019 VA opinions summarized above include a thorough review of the Veteran’s STRs and post-service medical records, along with citations to medical research and the Veteran’s own statements recalling the onset and nature of his symptomatology. Upon review, the Veteran has not submitted, and there is no probative evidence of record contradicting the March 2019 opinions. In this regard, although the Veteran may sincerely believe his hearing loss and tinnitus are related to in-service noise exposure, the Board finds the Veteran’s lay opinions regarding these matters, which require medical expertise, are outweighed by the March 2019 VA medical expert opinions weighing against the claims. Accordingly, the claims for service connection for bilateral hearing loss and tinnitus must be denied. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hampton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.