Citation Nr: 20021327 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-16 901 DATE: March 25, 2020 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s tinnitus began during service, or is otherwise related to service. 2. The preponderance of the evidence is against finding that the Veteran has a bilateral hearing loss disability that had its onset during service or was caused by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus not are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to December 1965. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran submitted a notice of disagreement (NOD) in September 2015, and the RO issued a statement of the case (SOC) in March 2017. The Veteran submitted a VA Form 9 in March 2017. In December 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. Audiometry results from before 1969 may have been in American Standards Association (ASA) units. However, current testing standards are set by the International Standards Organization (ISO) /American National Standards Institute (ANSI). If a military audiogram performed prior to 1969 does not indicate whether it was conducted according to ISO/ANSI standards, the results must be converted to ISO/ANSI units. Such conversion requires the following amounts be added to the recorded ASA audiological results: 15 dB at 500 Hz, 10 dB at 1000 Hz, 10 dB at 2000 Hz, 10 dB at 3000 Hz, and 5 dB at 4000 Hz. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his hearing loss is related to service. Specifically, he reports that he began experiencing hearing loss after exposure to rifle fire, heavy artillery, 105 guns, and mortars. At a September 2014 audiological consult, the Veteran reported exposure to rifle fire and artillery fire during service and reported noise exposure post-service while working as a millwright at General Motors. Service personnel records reflected a military occupational specialty (MOS) of infantry indirect fire crewman and show that the Veteran was awarded the rifle marksman badge. Personnel records dated March 1965 show that the Veteran performed with the Mechanized Rifle team during exercises in February 1965. An audiogram taken in October 1963, prior to the Veteran’s entrance to service, revealed the following puretone thresholds (in dB). As the audiogram report does not indicate whether testing was conducted according to ISO/ANSI standards, the result of converting to ISO/ANSI units is included in parenthesis: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) 0 (10) 10 (15) LEFT 10 (25) 10 (20) 10 (20) 0 (10) 10 (15) An audiogram taken in November 1965, approximately one month before the Veteran left active service, revealed the following puretone thresholds (in dB). As the audiogram report does not indicate whether testing was conducted according to ISO/ANSI standards, the result of converting to ISO/ANSI units is included in parenthesis: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 15 (25) 10 (20) 0 (10) 10 (15) LEFT 10 (25) 10 (20) 10 (20) 0 (10) 10 (15) September 2014 audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 15 10 LEFT 25 25 15 10 10 Additionally, Maryland CNC word list testing revealed 100 percent discrimination in the right ear and 96 percent discrimination in the left ear. The Veteran underwent a VA examination in March 2015. Audiometric testing showed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 15 10 LEFT 25 25 20 10 5 Maryland CNC word list testing revealed hearing loss for VA purposes in the left ear based on 80 percent discrimination. The examiner reviewed the Veteran’s in-service hearing tests and noted no hearing loss at the time of his separation from service. The examiner reported no permanent positive threshold shift (a shift of 10 dB or greater) in either ear at any frequency relevant for VA purposes during service. The examiner cited an Institute of Medicine (IOM) study on military noise exposure, which found no scientific basis for delayed onset noise-induced hearing loss. The examiner noted that while there is not sufficient evidence to determine whether permanent noise-induced hearing loss can develop long after cessation of noise exposure, the anatomical and physiological data available on the recovery process following noise exposure indicates that such effects are unlikely. Based on auditory testing during service, the IOM study, and the VA hearing examination results, the examiner opined that it was less likely than not that the hearing loss was caused by or a result of an in-service event. The Veteran’s hearing was tested by a private physician in April 2017. An April 2017 private Ear, Nose, and Throat (ENT) sets forth puretone thresholds in an audiogram chart, which appear to reflect the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 35 35 LEFT 35 35 35 30 25 The April 2017 private physician stated that the Veteran’s hearing loss “may” have been due to noise exposure. The examiner did not state what noise exposure he was referring to, nor did the examiner indicate knowledge of any specific noise exposure either during service or after service. Moreover, the examiner did not provide any rationale or further explanation to support the opinion. Moreover, the opinion merely indicates the possibility of a nexus between the Veteran’s hearing loss and service, but this does not rise to the standard of “as likely as not” i.e. a 50 percent or higher probability. Accordingly, the April 2017 opinion is speculative at best. At the Veteran’s December 2019 Board Hearing, he testified that he did not have hearing loss before service; that he first experienced hearing loss during service; and that his hearing loss has continued to the present. See Board Hearing transcript, p. 2-4, 7. He reported no hearing protection during service. He reported that he first sought treatment for hearing loss in 2000, and that a doctor told him his hearing loss was related to service approximately three to four years prior to the Board Hearing. Id. at 4. However, the audiometric testing from service is not consistent with the Veteran’s testimony. As noted above, it shows that the Veteran did not have a hearing loss disability for VA purposes prior to or during service, and shows no permanent threshold shift during service. The Veteran testified that he did not have hearing loss prior to service. Audiograms from service show that his hearing remained the same throughout service other than a shift of 5 Hz in the right ear at the frequency of 1000 Hz. Audiograms taken in September 2014 and March 2015 show that the Veteran did not have a hearing loss disability for VA purposes based on hearing thresholds. However, March 2015 speech discrimination testing revealed a left ear hearing loss disability for VA purposes. The record contains audiometric testing which shows that the Veteran did not undergo a permanent threshold shift during service. There is no medical evidence of record that shows treatment, complaint, or diagnosis of hearing loss at any point prior to September 2014, when the Veteran complained of minimal trouble hearing. There is no evidence of a hearing loss disability for VA purposes in the left ear prior to March 2015 or in the right ear prior to April 2017—approximately five decades after the Veteran’s separation from service. The March 2015 VA examiner provided a thorough rationale for the negative nexus opinion, based upon review of the Veteran’s claims file, including in-service audiograms; the IOM study; and available medical data. As noted above, the April 2017 private examiner indicated that the hearing loss may be due to noise exposure. However, the examiner did not state what noise exposure might be the cause; in fact, the note does not suggest that the examiner was aware of any particular source of noise exposure. Further, the opinion is speculative at best, as the examiner did not indicate any degree of certainty. Though the Veteran has a current bilateral hearing loss disability for VA purposes which he believes is caused by in-service noise exposure, the etiology of hearing loss is a medically complex issue which requires specialized medical knowledge with the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the record does not show that he has the expertise to make such a finding, he is not competent to opine as to the etiology of hearing loss and his opinion thereto is assigned no probative weight. Additionally, as noted above, the Veteran’s statements that he noticed hearing loss proximate to service is not consistent with the objective findings which show that the Veteran’s hearing was relatively the same prior to, during, and shortly after service. Weighing the probative evidence of record, including (i) the VA opinion finding no nexus between the hearing loss and service; (ii) the absence of any medical opinion of record linking the hearing loss to service with any degree of certainty; (iii) the absence of an in-service permanent threshold shift; (iv) the lapse of approximately five decades between separation from service and the first indication of a bilateral hearing loss disability for VA purposes, the preponderance of the evidence weighs against finding that the Veteran’s bilateral hearing loss is caused by or began during service. Accordingly, the preponderance of evidence is against a finding of a relationship between current hearing loss and active service, or that sensorineural hearing loss manifested to a compensable degree within one year following separation from service. 38 C.F.R. § 3.385. Therefore, the Veteran’s claim for service connection for bilateral hearing loss must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is related to service. Specifically, he reports that he began experiencing ringing in the ear after exposure to rifle fire, heavy artillery, 105 guns, and mortars. STRs dated October 1963 show no pre-existing diagnosis or complaints of tinnitus. STRs show no in-service complaints of, treatment for, or diagnosis of tinnitus. The November 1965 separation examination shows no complaint or report of tinnitus. A December 1965 final-type medical examination statement form signed by the Veteran shows that the Veteran reported no changes from his November 1965 examination, nor did the Veteran otherwise complaint of or report tinnitus. A June 2013 ambulatory care outpatient progress note shows that the Veteran was assessed with tinnitus, which was related to seasonal allergies. The Veteran was prescribed a trial of Claritin, daily. At a September 2014 VA audiology consult, the Veteran complained of unilateral tinnitus in the left ear. The Veteran reported that the tinnitus had an onset of approximately one year prior. The Veteran reported exposure to rifle fire and artillery fire during service; he reported noise exposure post-service while working as a millwright at General Motors. He reported minimal trouble hearing. The Veteran underwent a VA examination for hearing loss and tinnitus in March 2015. A VA examination Disability Benefits Questionnaire (DBQ) reflects a medical history of unilateral tinnitus, left ear, with onset of one year. The examiner opined that the tinnitus was at least as likely as not a symptom of the Veteran’s current hearing loss. As the examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by or related to military service, the examiner concluded that the Veteran’s tinnitus is not caused by service. The examiner acknowledged that other conditions, if caused by service, could have an association to tinnitus, but did not draw any nexus between any in-service condition and the tinnitus. The examiner indicated no compelling scientific evidence to support the onset of tinnitus in the absence of hearing loss. The examiner indicated that such cases exist, but studies associated with such cases are only speculative and have not identified any particular etiology. The examiner noted that it would be speculation to opine as to whether the tinnitus could be caused by noise but not cause measurable threshold changes. VA audiological progress notes from July 2015 through May 2016 show continued complaints of tinnitus. The April 2017 private Ear, Nose, and Throat (ENT) record shows complaints of tinnitus. At the Veteran’s December 2019 Board hearing, he testified that he did not have tinnitus before service and that he first experienced ringing in the ears during service after he was nearby an explosion. He testified that the ringing in his ears continued during service and continued after service. He reported that he first sought treatment for hearing loss and tinnitus in 2000. Based on the foregoing, the most probative evidence of record is against finding that the tinnitus is related to or had its onset in service. STRs show no complaints, treatment, or diagnosis of tinnitus prior to service, before service, or any time before June 2013. There is no evidence of record showing treatment for tinnitus in 2000 or at any point prior to June 2013. In June 2013, the Veteran reported tinnitus, which the treating physician attributed to seasonal allergies. The record contains complaints of tinnitus of the left ear between September 2014 to the present. The record contains a negative VA opinion which is based on an accurate disability picture and which provides a thorough rationale. Though the Veteran reported that a doctor told him his tinnitus is related to service, the record does not show any such evidence. Notably, the Veteran testified at his hearing, before the undersigned VLJ, that his tinnitus began in service and continued to the present. However, this conflicts with the September 2014 audiology consult note, which reflects the Veteran’s report of an onset of approximately one year prior to September 2014. The Board finds the Veteran’s September 2014 statement regarding the onset more probative than his later assertion of a condition beginning during service and continuing to the present, because the September 2014 statement more closely aligns with the evidence of record including the VA opinion, STRs, an absence of any evidence of tinnitus at any point during service or in the nearly five decades between the Veteran’s separation from service and the first complaint of tinnitus. For these reasons, the preponderance of the evidence is against the claim of service connection for tinnitus. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 53. Consequently, the benefit of the doubt doctrine does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.