Citation Nr: 20004429 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 13-21 973 DATE: January 21, 2020 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 shown in service, nor to a compensable degree within one year from service, symptoms were not continuous since service, and bilateral hearing loss is not causally or etiologically related to service. 2. The Veteran’s tinnitus was not shown in service, manifested to a compensable degree within one year after separation from service, had continuity of symptomatology since service, or is otherwise related to service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred during service or presumed to have been incurred therein. 38 U.S.C. §§ 1110, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to April 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Service Connection Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores, using the Maryland CNC test, are less than 94 percent. See 38 C.F.R. § 3.385. In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. See 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C. §§ 101 (24), 106, 1110, 1131. 1. Hearing Loss Turning to the evidence, the January 2011 VA audiological examination report revealed he has a current bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Further, in the March 2011 rating decision, in-service acoustic trauma was conceded. The Board finds that the in-service and current disability elements of his claim have been met. The remaining element is a causal nexus between the in-service acoustic trauma and the current bilateral hearing loss. As to in-service incurrence, the service treatment records (STRs) do not reflect hearing loss during active duty. In January 1970, the Veteran attended a medical examination for the purpose of release from active duty. At this time, no ear problems were noted, he marked “no” to hearing loss, and his hearing was within normal limits. There is no other evidence in the STRs from the time period that he was on active duty which shows a diagnosis of hearing loss. During the 2016 Board hearing, the Veteran testified that during service, he was exposed to noise while camping next to the shooting howitzers, and that he first noticed a difference in hearing when he was working with the howitzers. He stated that post-service, he owned a gas station and was a mechanic, and that he also worked for the Department of Defense (DoD) for 30 years. The DoD annual audiological records showed his hearing acuity declined and he had threshold shifts between 1983 and 2007. However, the first time the Veteran noted he was aware of hearing change was not until October 2003, and the first indication of hearing loss for VA purposes was not until October 2005 in the left ear only at the 4000 level. Further, DoD records indicated the Veteran was routinely exposed to noise intermittently and the Veteran himself reported to VA in August 2010 that when he worked for DoD, he was exposed to the noise of aircrafts. Further, in August 1983, the Veteran marked “no” to difficulty hearing and marked “yes” to history of hunting and shooting and noisy jobs and hobbies.   Additionally, there are several VA examinations and VA medical opinions as to the Veteran’s hearing loss. First, in January 2011, the VA examiner opined the Veteran’s hearing loss was less likely than not caused by or a result of military noise exposure. The rationale was that the Veteran currently has significant high frequency hearing loss, but he only had mild hearing loss when tested in 2008, and his hearing was marked as normal at separation. The examiner opined that the current hearing loss was more likely a post service occurrence. Then, in August 2019, the VA examiner opined that the Veteran’s current hearing loss was less likely than not related to active duty service from 1968-1970. The rationale was that there was no significant permanent shift in hearing thresholds from enlistment to separation, with objective evidence of no permanent auditory damage from conceded noise on active duty, and no report of hearing loss in STRs or at separation. However, the Board notes that the fact hearing loss was not factually shown during active duty service is not dispositive. A claimant can still be service-connected for a condition diagnosed after service when it is related to an event or injury from active duty. In this case, though, the examiner included a rationale pertaining to the DoD examinations; it is at least as likely as not that the Veteran’s hearing loss is related to the significant shift in hearing thresholds between 1983-2007 while in the reserves. However, the examiner further stated that “it cannot be determined if shift in thresholds and auditory damage from 1983-2007 is due to weekend drill with reserves or civilian occupational noise…there is no report of specific incident in reserve duty to attribute hearing loss...to [an] event while on weekend drill.” Here, the Board finds the VA opinions are probative in value. When the Board relies upon a medical opinion, that opinion must be considered adequate. To be adequate, the opinion must (1) be based upon consideration of the veteran’s prior medical history; (2) describe the disability in sufficient detail so that the Board’s “evaluation of the claimed disability will be a fully informed one,” Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991); and (3) “support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, while the Veteran testified at the 2016 Board hearing that he had been denied worker’s compensation in 2010 due to his hearing loss being due to the Army and not his DoD service, the Board finds this contradicts the letter in his file. The June 2010 letter from the Department of Labor actually stated his claim had been accepted for hearing loss due to employment-related noise exposure, but that his hearing loss is not severe enough to be considered ratable. Moreover, while hearing loss in the left ear was reflected in a 2005 DoD annual examination, the evidence does not show that he was on ACDUTRA or INACDUTRA at the time. In addition, in a September 1990 report of medical history, the Veteran marked “no” to hearing loss. Because there is no evidence of hearing loss during active duty or attributed to Reserve service and no medical nexus has been established to connect it, service connection is not warranted. The record also includes an August 2010 private medical record from Dr. C.B., who stated the Veteran continued to have a high pitch nerve hearing loss, and with his history of noise exposure, “this is the most likely explanation for the damage.” However, Dr. C.B. does not indicate what history he is referring to and does not indicate that he has reviewed the Veteran’s case files. An August 2011 private medical opinion from Dr. J.D., who opined that based on audiometric testing results, past audiometric testing, case history, and the Veteran’s chronological age, his documented hearing loss is more likely than not caused by excessive noise exposure during his military service. The Board notes, however, that his opinion is not entirely adequate. First, Dr. J.D. does not indicate if he reviewed the Veteran’s medical records, but rather the Veteran’s history was self-reported; further, he noted the Veteran’s service in the Army and Navy for 22 years, without indicating whether his opinion related to the Veteran’s active duty service or the Reserves. As to continuity of symptomatology, the Veteran indicated he experienced difficulty with general conversations after separation from service. However, the evidence does not show that he had symptoms associated with hearing loss until at least 2003, nearly 35 years after separation from active duty, and in the 2011 VA examination, he reported he had noticed his bilateral hearing loss for about two years. This evidence weighs against an onset some 40 years previously. Because the onset of hearing loss came at least 35 years after release from active duty, and a diagnosis for bilateral hearing loss came at least 40 years after separation from active duty, the evidence weighs against continuity of symptomatology. Next, the evidence does not show bilateral hearing loss manifested to a compensable degree within the presumptive one-year period. As stated above, the Veteran was not diagnosed with hearing loss until 40 years after separation from service. As such, service connection is not warranted for bilateral hearing loss. The Board has considered the Veteran’s lay statements that hearing loss is related to service or has been continuous since service. He is competent to report symptoms because this requires personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current hearing loss due to the medical complexity of the matter involved. Further, the Veteran’s claims have not been consistent; as noted above, in 2011 he reported he noticed the onset of hearing loss two years prior, but then in the 2016 Board hearing he stated he noticed it while in service; further, records indicated he did not have hearing loss until a 2010 audiogram showed bilateral mild to moderate sloping hearing loss – 40 years since separation from service. Finally, the October 2003 DoD records noted the Veteran first reported a change in hearing then, and in a February 2008 private medical note, the Veteran stated he had noticed an increased ringing in both of his ears but no other change with his hearing. In sum, the preponderance of the evidence weighs against the claim. Here, the Board attaches greater probative weight to the clinical findings than to the Veteran’s statements. In light of the above, service connection for bilateral hearing loss is denied. 2. Tinnitus The Veteran also contends his diagnosed tinnitus is due to his active duty service. Similar to the evidence discussed above, the preponderance of the evidence is against the claim. First, October 2007 VA records noted he had no previous history of tinnitus. In an April 2009 private medical note, it was noted the first report of tinnitus to Dr. J.A. was in March 2008 and he reported noise exposure from military service (complains of ringing in the ears and stated he noticed an increased ringing in both ears but no other changes in hearing was noted). In April 2010, the Veteran was awarded Social Security Disability in part due to his tinnitus, but the SSA records do not indicate that the tinnitus is due to or related to his active duty service. In fact, the report stated the Veteran had worked as an airplane mechanic for many years, that it was in April 2009 he reported the humming in his ears, and that in July 2009, he was diagnosed with tinnitus by Dr. C.B. In the January 2011 VA examination, the Veteran reported he noticed the ringing in his ears about two years prior, and the examiner opined it was less likely than not due to service, “because there was no hearing loss at separation from service and the onset of tinnitus was reported two years ago, the tinnitus is less likely due to military noise exposure.” Further, in August 2011, the Veteran later reported to Dr. J.D. that he had a constant high-pitched tinnitus in both ears that he had experienced for over 20 years; this would have been in 1980 – 10 years post-separation from active duty. Finally, in the August 2018 VA examination, the examiner opined it less likely than not the Veteran’s tinnitus was related to his active duty service as there was no significant shift in hearing and no report of tinnitus in his STRs. Again, as noted above, the fact tinnitus was not factually shown during active duty service is not dispositive, but the examiner opined tinnitus was at least as likely as not related to the threshold shifts between 1983 and 2007, and stated it cannot be determined if the auditory damage was due to weekend drills or civilian noise, and there was no incident in the Veteran’s Reserve records indicating tinnitus while on weekend drills. Further, as noted above, the first time the Veteran noted he was aware of any hearing changes was not until October 2003. In addition, DoD records indicated the Veteran was routinely exposed to noise intermittently and the Veteran reported to VA in August 2010 that when he worked for DoD, he was exposed to the noise of aircrafts, and in August 1983, the Veteran marked “no” to difficulty hearing and marked “yes” to history of hunting and shooting, and noisy jobs and hobbies. Therefore, as discussed in further detail above, the preponderance of the evidence weighs against the claim for service connection for tinnitus. The Veteran’s statements are inconsistent with the onset of his tinnitus, and he was not diagnosed with tinnitus until 2009. As such, the preponderance of the evidence is against the claim for service connection for tinnitus and the claim is denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.