Citation Nr: 21000278 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-55 460 DATE: January 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Bilateral hearing loss was not present in service and is not shown for many years thereafter, and the preponderance of the evidence weighs against a finding that the current bilateral hearing loss was incurred during or as a result of service. 2. The most competent, credible, and probative evidence reflects that tinnitus did not have its onset during active service, did not manifest within one year of service, and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 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. §§ 1110, 1131, 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 July 1965 to July 1967. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, including hearing loss and tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. The Veteran is seeking service connection for bilateral hearing loss. He has asserted that he was exposed to significant noise during his service in Korea, as he reported that his base camp was run by large generators on which he performed maintenance and that his duties in radio relay required that he be around radio equipment on a daily basis. He has also asserted that his hearing loss began during service and still exists today. See January 2017 Veteran statement. In this context, the Board notes that the Veteran’s DD Form 214 and other service personnel records indicate that he served as a radio relay and carrier operator. Thus, the Board acknowledges the Veteran’s in-service noise exposure. However, the Board observes that the Veteran’s service treatment records (STRs) do not contain any complaints, treatment, or findings related to hearing loss. Indeed, while the Veteran has asserted that his hearing loss began during service, his hearing was within normal limits the audiograms performed during service. The record reflects that the Veteran had in-service audiological evaluations in May 1965, prior to entering service, and in August 1967, at separation from service. The May 1965 audiogram is considered to have used the American Standards Association (ASA) units, as it was conducted prior to January 1, 1967. However, because it is unclear whether the threshold recorded during the August 1967 audiogram were recorded using the ASA units or International Standards Organization American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: During the Veteran’s May 1965 pre-induction examination, the hearing evaluation revealed pure tone thresholds (ISO-ANSI units after conversion are in parentheses), in decibels, were as follows: Hertz 500 1000 2000 3000 4000 RIGHT -5 (10) 0 (10) 0 (10) 5 (15) 5 (10) LEFT -5 (10) -5 (5) 10 (20) 5 (15) 5 (10) During the Veteran’s August 1967 separation examination, he specifically denied having any hearing loss. See STRs. Further, his pure tone thresholds (ISO-ANSI units after conversion are in parentheses), in decibels, were as follows: Hertz 500 1000 2000 3000 4000 RIGHT -5 (10) 0 (10) 0 (10) Not tested 10 (15) LEFT 0 (15) 5 (15) 0 (10) Not tested 0 (5) Based on the foregoing, the Board finds that the Veteran’s hearing was not of the severity to be considered a disability in either ear during service, including after his acknowledged in-service noise exposure. See 38 C.F.R. § 3.385. In fact, the first objective evidence of a hearing loss disability is reflected in a September 2020 VA examination wherein the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were 26 decibels or greater. See September 2020 VA examination. The Board notes that the Veteran may have experienced a hearing loss disability prior to September 2020 test results from audiograms performed during VA examinations in March 2017 and November 2019 were not considered valid because of poor consistency in the Veteran’s responses, poor agreement between his observed communication ability and admitted thresholds, and his lack of maximal effort. See VA examination reports dated March 2017 and November 2019. Nevertheless, because bilateral hearing loss was shown during the appeal period, the remaining inquiry is whether there is a nexus, or link, between the Veteran’s current bilateral hearing loss and his acknowledged noise exposure during active service. After conducting an audiogram and reviewing the record, the September 2020 VA examiner opined that the Veteran’s current hearing loss was less likely as noted related to his military noise exposure. The VA examiner noted there was no significant permanent shift in the Veteran’s hearing thresholds from entrance to separation from service, which is objective evidence of no permanent auditory damage from the conceded noise exposure on active duty. In this regard, the examiner noted that, while the relationship between noise, auditory damage, and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone but, instead, there must be a nexus of auditory damage to relate the hearing loss to military noise and not another etiology. The examiner noted that there is no complaint or treatment for hearing decrease in the STRs, including at separation. She also noted that the Veteran’s hearing was normal at separation from service and that he had post-service occupational noise exposure as a steel worker, which exposed him to many years of hazardous noise. As a result, the examiner stated that there is no evidence to support a nexus or relate the Veteran’s current hearing loss to military noise and not another etiology In evaluating this claim, the Board places great probative weight on the opinion provided by the September 2020 VA examiner, as the opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. In making this determination, the Board acknowledges that the VA opinion is not perfect, as the examiner partially based her opinion of the fact that the Veteran had many years of occupational noise exposure, although the examination report reflects that the Veteran stated that he wore hearing protection during post-service employment. The Board also acknowledges that the VA examiner did not convert the Veteran’s in-service audiograms from ASA to ISO-ANSI. Nevertheless, the Board notes that the VA examiner’s reliance upon the significance of the Veteran’s post-service noise exposure was only one basis of her opinion, as she also noted the lack of evidence supporting a nexus between the Veteran’s in-service noise exposure and current hearing loss, to include lay evidence of decreased hearing at separation from service and objective evidence of auditory damage at separation from service. The Board also notes that the converted audiogram findings do not show a hearing loss disability for VA purposes and that the audiogram results actually show an improvement in the Veteran’s hearing from entrance to separation whether converted or not. Therefore, the Board finds that any deficiencies in the September 2020 opinion are harmless and do not render the opinion inadequate for adjudication purposes. Indeed, the VA examiner considered the Veteran’s reported and medical history, the current examination findings and provided adequate rationale to support the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed); see also Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (noting that medical reports “must be read as a whole” in determinations of adequacy.) In addition to the foregoing, the Board notes that there is no contrary medical evidence or opinion of record that suggests or indicates that the Veteran’s current hearing loss is related to service. Therefore, the September 2020 VA opinion is considered the most competent, credible, and probative evidence of record in this regard. In evaluating this claim, the Board has also considered the statements of the Veteran and his representative linking the Veteran’s current hearing loss to his military service. However, the Veteran is not competent to attribute his hearing loss to any instance of his military service, as he has not demonstrated that he is an expert in determining the etiology of hearing loss and is a layperson in this regard. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson’s competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). Neither the Veteran’s nor his representative’s statements linking the Veteran’s current hearing loss to his military service are within the realm of knowledge of a layperson. Rather, such is a complex question that requires expertise. Specifically, it involves the impact of acoustic trauma and loud noises on the auditory functioning of the ear and, in this case, a medical professional has reviewed the claims file, examined the Veteran, and provided a well-reasoned medical opinion that considered the impact of the Veteran’s noise exposure on his hearing disability and found an etiologic relationship unlikely. The Board additionally notes in this regard that, while the Veteran has reported having hearing loss since service, he specifically denied having hearing loss during his separation examination and there is no objective evidence of a hearing loss disability until many years post-service. Therefore, the lay statements submitted in support of this claim are outweighed by the competent, credible, and probative medical evidence of record. In summary, the Board notes that, while the evidence of record shows the Veteran has a current bilateral hearing disability, the probative evidence of record demonstrates that such is not related to his service. Indeed, as noted, a demonstrable hearing impairment was not documented by audiograms conducted during service or for many years thereafter service and a medical professional has opined that the current bilateral hearing impairment is not likely due to the Veteran’s military noise exposure. Moreover, the clinical evidence of record fails to show that bilateral hearing loss manifested until 2020, more than forty years after discharge from active duty. Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Accordingly, as the Veteran’s bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest to a compensable degree within one year of the Veteran’s discharge from service, service connection for bilateral hearing loss is not warranted. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and the Veteran’s claim is denied. 2. Entitlement to service connection for tinnitus During the September 2020 VA examination, the Veteran reported that he experiences recurring tinnitus, which he is competent to report. See Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). Accordingly, the first element of service connection is established. However, despite the evidence of a current disability, the competent and credible evidence of record does not establish in-service incurrence or a nexus between the Veteran’s current tinnitus and service. With respect to the second element of service connection (in-service incurrence), the Board again notes that the Veteran experienced in-service noise exposure and, thus, the second element of service connection has been established. Turning to the question of whether the Veteran’s current tinnitus was incurred during or as a result of his service, the Board notes that the STRs do not contain any complaint of tinnitus. The Veteran did not lodge any complaints of tinnitus after service until 2077, when he filed his claim of service connection for tinnitus. Additionally, during the September 2020 VA examination, the Veteran reported that his tinnitus began four to five years prior to the examination, i.e., in 2015, which is several years after he was discharged from service. In this regard, the Board notes that the Veteran has provided inconsistent statements regarding the onset of his tinnitus disability. When he initially filed his service connection claim in 2017, the Veteran stated that his tinnitus started in service and exists today. However, as noted, he did not provide any such report at separation from service and reported that his tinnitus began no earlier than 2015 during the September 2020 VA examination. The Veteran is competent to report the onset and continued nature of his tinnitus disability; however, his statements are inconsistent with each other and the other evidence of record, which weighs heavily against the credibility of his statements. The Board also finds probative that the Veteran was afforded VA examinations in 2017 and 2019 but the examiners noted poor consistency in the Veteran’s responses and poor agreement between his observed communication ability and admitted thresholds during audiologic examination, which also weighs against his credibility. As the ultimate finder of facts, it is the Board’s duty to assess the credibility and weight of conflicting evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”). In this case, given the Veteran’s inconsistent statements and inconsistency with other evidence of record, the Board finds that his statements of having tinnitus during and since service are not credible and, thus, not probative evidence in this appeal. Therefore, service connection for tinnitus is not warranted on a presumptive basis or based upon continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran was afforded a VA examination in September 2020 to determine the etiology of his tinnitus. After reviewing the record, in addition to interviewing and examining the Veteran, the VA examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The VA examiner noted that there is no report of tinnitus in the STRs, including at separation from service, and stated that there is no evidence of auditory damage during service to relate the current report of tinnitus to military noise exposure. The VA examiner also noted that the Veteran did not seek treatment until 2017 and that he has a history of post-service occupational noise exposure, as he worked as a sheet metal worker for 38 years. The September 2020 VA opinion is considered competent, credible, and probative evidence, as the examiner considered all relevant facts. In this regard, while the examiner did not address the fact that the Veteran reported wearing hearing protection during post-service employment, she provided additional bases for her conclusion, including the lack of complaints of tinnitus at separation from service and the lack of evidence showing auditory damage during service to establish a nexus between the Veteran’s acknowledged in-service noise exposure and current complaints of tinnitus. The Board also notes there is no credible evidence of tinnitus continuing since service. Therefore, the Board finds the September 2020 VA opinion is afforded significant probative weight, as it is supported by a clear rationale and is consistent with the other evidence of record The Board acknowledges that the Veteran believes his tinnitus is related to his military service; however, to the extent that his lay assertions are intended to establish a nexus between his tinnitus and service, the Board notes that his assertions are afforded lessened probative value because they are not consistent with the other evidence of record which weighs against a finding that his tinnitus was incurred during or as a result of his service. Further, the Veteran is not shown to have the medical expertise to opine on complex matters, such as the etiology of an inner ear condition. As such, the Veteran’s purported nexus statements are not considered competent or probative evidence favorable to his claim. Therefore, based on the foregoing, the Board finds the preponderance of the most competent, credible, and probative evidence is against the grant of service connection for tinnitus. Because the evidence preponderates against the Veteran’s claim, the benefit-of-the-doubt doctrine is not for application and his claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.