Citation Nr: 19149259 Decision Date: 06/25/19 Archive Date: 06/24/19 DOCKET NO. 13-23 433 DATE: June 25, 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 evidence of record does not persuasively show that the Veteran’s bilateral hearing loss is etiologically related to in-service noise exposure. 2. The evidence of record does not persuasively show that the Veteran’s tinnitus is etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria establishing entitlement to service connection for a hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria establishing entitlement to service connection for a tinnitus disability are not met. 38 U.S.C. §§ 1110, 1112, 1131, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1960 to November 1961 and from September 1963 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran submitted a Notice of Disagreement in August 2010. A Statement of the Case (SOC) was issued in July 2013. The Veteran perfected a timely substantive appeal via VA Form 9 in August 2013. The Veteran appeared before the undersigned Veterans Law Judge at a travel Board hearing in August 2017. A transcript of the proceeding is of record. In November 2017, the Board remanded the claims for further development. A Supplemental SOC was issued in April 2019. Service Connection The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus due to acoustic trauma, are included in the list of chronic diseases under 38 C.F.R. § 3.309(a). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 1. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran contends that his bilateral hearing loss and tinnitus were incurred as a result of his exposure to loud noise from gunfire and mortars while serving in infantry and artillery units in the Army. Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. For purposes of applying the laws administered by VA, 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. Here, the Veteran has several diagnoses of bilateral hearing loss and the severity of his hearing loss in each ear meets the criteria for a disability as defined by 38 C.F.R. § 3.385. Furthermore, the Veteran’s service records indicate that he served as an infantryman and as an artillery crewman. As these military occupational specialties (MOS) have been determined by the Department of Defense to involve a “highly probable” likelihood of hazardous noise exposure, in-service noise exposure is conceded. See 38 U.S.C. § 1154. The Veteran’s service treatment records (STRs) are silent to complaints or diagnoses related to hearing loss or tinnitus. Reports of Medical History dated in November 1961, September 1963, and June 1966 prepared and signed by the Veteran do not show any complaints referable to hearing difficulties or ringing in the ears. The Veteran submitted the pending claim for service connection for hearing loss and tinnitus in November 2009. He did not provide a date of onset. He indicated that he was treated at a VA facility in 2006 for acoustic trauma hearing loss and tinnitus and given hearing aids. A June 2007 VA audiology consult shows that the Veteran was seen for an initial comprehensive audiometric evaluation in response to a consult received from a referring physician. The Veteran reported a “gradual” onset of his hearing loss and “occasional” tinnitus. A lay statement from the Veteran’s ex-spouse was received in December 2009. She described meeting and marrying the Veteran in 1967. She related that the Veteran “was always complaining of ringing in the ears” and that “[a]t the time we did not know much about hearing problems.” She stated that he sought treatment for hearing loss in the early 1980s and was informed that his hearing was deteriorating. She maintained “[t]hat is when the TV got louder and I would have to either speak louder or make sure I was not on his left side when I was talking to him.” As the years passed, his hearing got progressively worse. In December 2009 statements, the Veteran confirmed that he was examined for hearing loss in the mid-1980s but could not recall the name of the doctor to allow VA to obtain the records. He also described the gunfire, explosions, and vehicle noise that he endured in service without ear protection. He is certain that his hearing loss stems from this exposure. The Veteran underwent a VA audiological evaluation in February 2010. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 60 70 80 100 LEFT 40 50 70 90 95 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 80 percent in the left ear. The examiner noted that STRs reflected hearing within normal limits upon entrance and separation from service, although tested in part through whisper tests. He documented the Veteran’s complaint of decreased hearing acuity and tinnitus since the 1970s, along with his description of in-service noise exposure including a nearby explosion. The examiner also documented post-service noise exposure through construction and farming for about 15 years with no hearing protection, and recreational shooting but with hearing protection. After audiological testing and review of the claims file, the examiner opined that the Veteran’s hearing loss is not the result of the conceded military noise exposure. The examiner found that the tinnitus was a symptom of the Veteran’s hearing loss. In support of this opinion, he cited the normal hearing measurements and lack of threshold shift in the Veteran’s hearing during service. He stated that occupational and recreational noise exposure and aging could not be ruled out as contributory to the current hearing loss. During his hearing before the Board in August 2017, the Veteran explained that he married his ex-spouse within a year of leaving the service. He stated that the tinnitus did not start in service but had its onset after service. It took him awhile to realize that he actually had hearing loss. He did not believe that any of his post-service occupations exposed him to excessive noise. The Veteran underwent a private audiological evaluation in September 2017. The evaluator diagnosed mild to profound sensorineural hearing loss bilaterally. The Veteran provided a history of his military service, as well as post-service occupational and recreational noise exposure. He reported that his occupational noise exposure “was not an issue.” The Veteran reported that he had suffered from tinnitus since his discharge from service in 1967 and his then fiancé reported him having some difficulty hearing as well. The evaluator opined that, in view of the Veteran’s history, the hearing loss and tinnitus are more likely than not (51 percent) the result of his time in service with noise exposure over five years. He stated that the occupational/recreational noise exposure did contribute as well but probably not more or less than 49 percent as the Veteran reported use of ear protection when hunting post-service. An addendum opinion was obtained from a VA audiologist in December 2017. She reviewed the claims file and opined that the Veteran’s hearing loss and tinnitus are less likely as not a result of noise exposure incurred during military service. As an initial matter, she acknowledged VA guidance to assume ASA measurements for exams dated October 31, 1967 or prior, but also noted that it is advised that audiologists should still look carefully at converted and non-converted thresholds for any service exam dated prior to 1969 where calibration was not specifically noted. In this case, all the exams are dated prior to 1969. She noted that conversion does not afford the Veteran with evidence in his favor of a statistically significant shift in hearing for the worse during military service. She then went on to explain that, when exposed to hazardous noise levels for extended duration or high intensity, the cochlea can receive temporary or permanent damage, resulting in loss of hearing. This occurs in the high frequencies first as their hair cells are the first traumatized by the sound pressure waves. In order for an audiologist to determine if a shift in hearing has occurred permanently, there would need to be a shift in hearing for the worse at 15dBHL or greater at one frequency or 10dBHL at two adjacent frequencies. This is considered a clinical guideline. She cited to Regarding Test Re-test variability: Stuart Stenstrom Tompkins et al, Audiology, 30, 82-90, 1991, “Considering the presently employed clinical test procedures, as was investigated in this study, an audiologist would have to see a change in audiometric test-retest threshold of approximately 10-15 dB to be 95% confident that the difference did not occur as a result of variability due to measurement error. Consequently, a large change in hearing sensitivity must occur before it can be detected.” When comparing the Veteran's thresholds from 1960 to 1966, she stated that there is not a shift in hearing that meets the above criteria to be considered statistically significant. Finally, she stated that the Veteran was released from active duty with normal hearing bilaterally and without a statistically significant shift in thresholds for the worse when comparing entrance to exit audiograms. This suggests that his hearing loss occurred after active duty due to factors unrelated to military service. The Institute of Medicine Study (2005) entitled “Noise and Military Service: Implications for Hearing Loss and Tinnitus” revealed there is not sufficient evidence from longitudinal studies of 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. Animal studies have suggested the possibility of delayed onset of hearing loss following noise exposure; however, there are inherent risks in basing conclusions solely on animal studies. 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, she stated that it is unlikely that such delayed effects occur. No longitudinal studies have examined patterns of hearing loss over time in noise-exposed humans who did not develop hearing loss at the time of the noise exposure. The IOM committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. After careful consideration of the evidence of record, the Board finds that the preponderance of the evidence weights against the presence of a nexus between the Veteran’s current hearing loss/tinnitus and the conceded noise exposure in service. The Veteran is competent to report hearing-related symptoms he has experienced because this requires only personal knowledge, not medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469. However, he is not competent to opine on the complex medical question of etiology, particularly when the record does not show persuasive evidence of continuity of symptomatology. See, e.g.,Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Given the complexity of the medical issues at hand, the Board affords more probative value to the medical evidence of record. In the case of conflicting medical opinions, the Board must weigh the credibility and probative value of the medical opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). Other factors affecting the probative value of a medical opinion include thoroughness and degree of detail, and a well-reasoned rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Bloom v. West, 12 Vet. App. 185, 187 (1999). The credibility and weight to be attached to these opinions is within the province of the Board. In this case, the December 2017 addendum opinion is afforded significant probative value given the detailed rationale, including the application of relevant medical studies and treatises to the Veteran’s history and diagnosis. While the September 2017 private evaluation has been considered, the Board does not find the opinion persuasive on the issue of etiology of the Veteran’s hearing loss and tinnitus. As an initial matter, it is unclear whether the evaluator was an audiologist. The December 2017 audiologist’s opinion demonstrates her breadth of understanding of the etiology of hearing loss in detail not reflected in the September 2017 evaluation. Furthermore, the September 2017 evaluator did not have access to the claims file to benefit from an understanding of the Veteran’s full medical history. Crucially, the private opinion does not account for the fact that in-service audiograms show normal hearing and no statistically significant shift in thresholds indicative of a noise injury. This is particularly significant because the evaluator rendered a finding that the Veteran’s occupational/recreational noise exposure contributed to his hearing impairment but probably not more or less than 49 percent and therefore, the Veteran’s current hearing loss and tinnitus were more likely than not (51 percent) due to in-service exposure. The Board is unable to reconcile this finding of allocation of harm with the fact that in-service audiograms showed normal hearing. For these reasons, the Board places greater evidentiary weight on the VA opinion than the private opinion. Accordingly, after thorough review of the conflicting medical opinions, the Board finds that the December 2017 opinion from the VA examiner is more probative than the private opinion due to the detailed supporting rationale and application of relevant studies to the Veteran’s condition with the benefit of the full claims file. Indeed, in referencing the IOM report, the VA examiner noted that the committee acknowledged that there is not sufficient evidence from longitudinal studies of 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 and that definitive studies to address this issue have not been performed, but from what is known, the committee maintained that based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. Thus, the Board observes that although more definitive studies on delayed-onset hearing loss have not been performed, based on expert current knowledge of the mechanics of human hearing, its occurrence is not likely. While a medical principle need not reach scientific consensus to adequately support a grant of VA benefits, the nexus element in a general service connection claim must be substantiated by a probability of a connection between the claimed disability and an incident of military service rather than a mere possibility of such a connection. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) Bloom v. West, 12 Vet. App. 185, 187 (1999); Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Board finds that the VA examiner’s reliance on medical treatises and the IOM report to ultimately conclude that there is no persuasive basis to attribute the Veteran’s in-service noise exposure to his current hearing loss and tinnitus is supported by sound medical principles. Consequently, the VA examiner’s opinion is adequate and of significant probative value. Thus, the more probative VA medical opinion weighs against establishing service connection for bilateral hearing loss and tinnitus. In so finding above, the Board notes that there is no medical evidence or persuasive credible lay evidence that the Veteran's claimed disorders manifested to a compensable degree within a year of his separation of service or had their onset in service and continued ever since service. A close review of the Veteran and his ex-wife’s statements show that the onset of the Veteran’s chronic hearing difficulties and ringing in the ears occurred after service. The statements of onset, however, have varied from 1967, 1970, the 1970s, the early 1980s, to the mid- 1980s. The lay evidence is too speculative to credibly and persuasively support a finding of presumptive service connection for a chronic disease or a continuity of symptomatology. (continued on next page) After careful consideration, the Board concludes that the probative evidence of record weighs against a finding that the Veteran’s hearing loss and tinnitus are related to his military service. 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. 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G. 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.