Citation Nr: 21001164 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 20-16 362 DATE: January 7, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest in service or within one year of separation from service and was not otherwise caused by the Veteran’s active service. 2. Tinnitus was not manifest in service or within one year of separation from service and was not otherwise caused by the Veteran’s active service. 3. A TBI and residuals thereof were not manifest in service and there is insufficient competent and credible evidence to demonstrate that any such disability or residuals thereof were caused by any aspect of active service. 4. An acquired psychiatric disorder, to include PTSD, was not manifest in service, psychosis was not manifest within one year of service, and there is insufficient competent and credible evidence to demonstrate that any current acquired psychiatric disorder was caused by any aspect of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for residuals of TBI have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Army from October 1965 to April 1966 with additional service in the Army Reserve until 1974. The Board acknowledges that an August 2018 RAMP Opt-In Election form was submitted by the Veteran; however, this document clearly was submitted in error, as the election form states, “I understand that this review will be based upon the evidence submitted to VA as of the date of this election and VA will not seek additional evidence on my behalf as part of the higher-level review.” Despite the foregoing, the Veteran subsequent to his August 2018 election form has repeatedly submitted additional evidence, demonstrating that he did not actually intend to opt-in to RAMP. Moreover, after the March 2020 Statement of the Case (SOC), the Veteran perfected his appeal in March 2020 with a timely VA Form 9, which further demonstrates his desire for the appeal to be considered under the legacy system. Similarly, the Veteran’s representative has not suggested that the appeal should be adjudicated under RAMP or the Appeals Modernization Act (AMA) and the RO has continued to develop the claim and adjudicate the claim under the same system. Finally, in the March 2020 SOC the VA Regional Office (RO) acknowledged the opt-in submission, but declined to honor it explaining that the Veteran already had opted into the legacy system by requesting review of his claim by a Decision Review Officer (DRO). For these reasons the Board finds it appropriate to consider the appeal under the legacy (old) review system. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110. “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present 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 or aggravated during service the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including psychoses and other organic diseases of the nervous system, such as sensorineural hearing loss, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). 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). 1. Entitlement to service connection for tinnitus 2. Entitlement to service connection for a bilateral hearing loss disability Service personnel records show that the Veteran accomplished initial basic training and advanced infantry training during the period of active duty for training. Thereafter, he performed Reserve duty as a cook. During an April 1965 pre-induction examination, the Veteran had hearing acuity within normal limits. During a contemporaneous Report of Medical History the Veteran denied a history of ear trouble. A March 1966 Report of Medical History prior to separation from the Veteran’s first period of active duty for training included a report of a history of ear, nose or throat trouble that specifically was described as seasonal sinusitis. No mention of any specific ear problems was raised. A contemporaneous Report of Medical Examination included a normal examination of the ears and an audiogram showing hearing acuity within normal limits for VA purposes. An April 1967 Report of Medical Examination is of record that included an audiogram using MAICO audiometer testing showing hearing acuity within normal limits for VA purposes. In a contemporaneous Report of Medical History the Veteran denied a history of ear trouble or hearing loss. An August 1969 Report of Medical Examination included a normal examination of the ears and a whispered voice hearing test that was 15 out of 15. In a contemporaneous Report of Medical History the Veteran denied a history of ear trouble. A March 1973 “Enlistment Physical” included a normal examination of the ears, but did not include audiometric testing results. During a contemporaneous Report of Medical History, however, the Veteran denied a history of ear trouble or hearing loss. In November 2015, when establishing care with VA the Veteran reported that his left eardrum had ruptured during boot camp, but that he had never sought medical care for the problem. After service, the Veteran had driven a truck. On examination, the left ear canal was impacted with cerumen and there was reduced hearing in that ear. Removal of the cerumen was encouraged, but there was noted reduced bone conduction hearing noted with a tuning fork. The assessment was a left ear hearing deficit that according to the Veteran had been present since an accident in boot camp, although he admitted to never having sought treatment. In a January 2016 statement, the Veteran described an incident in October or November of 1965 during basic training when a lieutenant accidently threw a grenade near a bunker that could not be retrieved in time. Those close by threw themselves to the ground and when the grenade exploded it felt like being hit by a car or train. Afterwards, the Veteran’s and others’ ears were bleeding, hurting, and ringing. A medic cleaned up the service members and they were sent to the barracks to rest. An April 2016 VA hearing loss and tinnitus examination is of record. Audiometric testing, however, could not be accomplished due to cerumen impaction in the Veteran’s ears. As to the Veteran’s tinnitus, he reported onset at the time of the in-service explosion of the hand grenade. No opinion could be provided at that time due to the inability to test the Veteran’s hearing acuity. The Veteran underwent a VA examination in June 2016. At that time, the Veteran had a bilateral hearing loss disability for VA purposes. As to each ear, the examiner concluded that it was not at least as likely as not that the right or left ear hearing loss disability was caused by or a result of service. The rationale was that the Veteran had normal hearing acuity both on entrance and separation from his first period of service with no evidence of a threshold shift. There was no evidence of complaints of or treatment for hearing or ear issues. In addition, the examiner noted that research studies had shown that hazardous noise exposure had an immediate effect on hearing and that it usually was temporary at first. There was not delayed onset hearing loss and it also was not progressive or cumulative. The examiner cited to multiple studies in support of that conclusion. In addition, the examiner noted that the Institute of Medicine in 2005 had released a study indicated “that there was no scientific basis for delayed or late onset noise-induced hearing loss, i.e. hearing normal at discharge and causally attributable to military noise exposure 20-30 years later. In cases where there were entrance and separation audiograms and such tests were normal, there was no scientific basis for concluding that hearing loss that develops 20 or 30 years later is causally related to military service.” In addition, a 2002 study by the American College of Occupational and Environmental Medicine showed that “hearing loss due to noise does not progress (in excess of what would be expected from the addition of age-related threshold shifts) once the exposure to noise is discontinued.” Finally, a book entitled, “Medical-Legal Evaluation of Hearing Loss” stated, “Once the exposure to noise is discontinued, there is no significant further progression of hearing loss as a result of the noise exposure.” The book also indicated, “Previous noise-induced hearing loss does not make the ear more sensitive to future noise exposure.” As to the Veteran’s tinnitus, the examiner noted how the Veteran had reported that tinnitus onset had been at the time of the explosion of the hand grenade while on active duty. The examiner concluded that the Veteran’s tinnitus was at least as likely as not a symptom associated with his hearing loss disability, as tinnitus was known to be a symptom associated with his hearing loss. In support of his claim, in September 2017 the Veteran submitted a Hearing Loss and Tinnitus Disability Benefits Questionnaire completed by a private audiologist. Testing results showed a bilateral hearing loss disability for VA purposes. The examiner found it significant that the Veteran shot firearms right-handed while in service and also discussed the alleged 1965 grenade concussion in a bunker. The Veteran also discussed tinnitus in 1965 and subsequent intermittent tinnitus that “comes [and] goes softer [and] louder.” At times, the Veteran had to take aspirin and lie down due to tinnitus. The examiner concluded that there was a greater than 50 percent probability that the Veteran’s hearing loss disability was initially caused in 1965 by his service. As to the tinnitus, the examiner concluded that there was a “750%” probability that the tinnitus was caused by the Veteran’s hearing loss disability. In a November 2018 statement, the Veteran stated, “Sometimes I get in a room alone and can hear buzzing all around me. It is a weird sound.” Another November 2018 statement noted that an August 1969 medical examination included only a whisper voice test and that now he experiences “bouts of tinnitus and does not know what is happening when it occurs.” In an April 2020 statement, the Veteran’s representative contended that the in-service grenade explosion less than 10 feet from the Veteran “caused noise inducted hearing problems to include tinnitus. The explosion and force of fall caused concussion and PTSD. [The Veteran] vividly remember[s] this incident and has nightmares and anxiety because of it.” During his November 2020 Board hearing the Veteran discussed the claimed in-service grenade incident discussed in greater detail above. The Veteran indicated that overall symptoms had improved over time since the incident, but that “I still lose my hearing every once in a while.” The Veteran reported ongoing tinnitus from service. He also denied any significant post-service noise exposure. As to the tinnitus claim, the sole evidence linking such disability to the Veteran’s active service are his contentions, although the private audiologist in September 2017 did note the Veteran’s report of tinnitus since the grenade incident. To the extent that any of his contentions can be construed as claiming a continuity of tinnitus from service, he has made contradictory statements in that regard. Specifically, the Veteran has made inconsistent reports regarding whether he has experienced ongoing tinnitus from his claimed in-service injury due to the grenade going off in close proximity. At times, the Veteran has reported at most intermittent tinnitus occurring at points in time, while at others he has suggested ongoing tinnitus from service. Given that the Veteran repeatedly denied problems with his ears during his first period of active service, his second period of active service, and in the years following service, the Board finds no basis to suggest ongoing tinnitus from service. The Board finds it reasonable to conclude that had the Veteran had tinnitus immediately after the explosion; but had he been experiencing ongoing tinnitus from his claimed grenade incident early in his active service that he would have reported such problems when asked, particularly given that in his Reports of Medical History over the years he discussed multiple other past and ongoing health problems and symptoms. There is nothing to suggest ongoing tinnitus from service until the Veteran filed his claim for entitlement to service connection with VA and even then, at times, he has reported tinnitus occurring at random and intermittent periods. Given these inconsistencies and the Veteran’s lack of medical training, education, and experience, the Board does not find him to be credible to connect any current tinnitus with any in-service incident or his service as a whole, to include the claimed in-service incident involving an exploding grenade. Both medical opinions of record have linked the Veteran’s tinnitus to his hearing loss disability. As will be discussed immediately below, the Board finds that service connection is not warranted for the Veteran’s hearing loss disability. As such, this association between the Veteran’s tinnitus and hearing loss disability is insufficient to warrant service connection for tinnitus. As to the Veteran’s bilateral hearing loss disability, the Board concludes that the hearing loss disability had its onset multiple years after service and is not otherwise caused by service. In reaching that opinion as to the bilateral hearing loss disability, the Board has considered the findings and conclusions from the June 2016 VA examination report. The examiner concluded that given the normal hearing acuity at entrance and separation of the Veteran’s first period of service that it was less likely as not that the Veteran’s current bilateral hearing loss disability was related to service. The examiner discussed extensively the absence of evidence of delayed onset hearing loss. The Veteran and his representative have discussed how subsequent hearing tests during the Veteran’s second period of active service were done only using the whispered voice method of testing and rightly pointed out that such testing is subjective and of questionable validity. However, an audiometric test was performed in March 1966 and April 1967 that measured normal hearing acuity. That said, the Veteran’s entire argument is that his hearing loss is due to the claimed grenade incident that occurred in November 1965 during basic training. The June 2016 examiner cited to and discussed in great detail multiple studies showing there cannot be delayed onset hearing loss from acoustic trauma. Thus, for the Veteran’s argument to succeed there would need to be hearing loss shown on all hearing tests after the claimed November 1965 grenade incident. Subsequent to that incident, however, the Veteran had valid audiograms in March 1966 and April 1967 that showed no hearing loss disability for VA purposes or significant threshold shift. In light of the foregoing, the Board finds the examiner’s rationale highly persuasive and of much greater probative weight than the arguments of the Veteran and his representative. The Board acknowledges that the September 2017 private audiologist concluded that the Veteran’s hearing loss disability was the result of his active service, specifically the 1965 incident. This opinion, however, provides no specific evidence to support this conclusion and fails to discuss or reconcile the normal audiograms after the incident and the multiple studies demonstrating that delayed onset hearing loss following acoustic trauma was not medically supported. As such, the Board affords this examination significantly less probative weight than the June 2016 examination report. The Board is aware of the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, such as hearing loss, specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). However, neither hearing loss nor an organic disease of the nervous system was noted during service, including at the time of examination shortly before separation from active service. As noted above, the medical evidence does not show hearing loss until multiple decades after the Veteran’s separation from service. Moreover, during service the Veteran consistently denied ear problems and as late as a March 1973 Report of Medical History the Veteran denied ear problems or a history of hearing loss. As such, the Board finds that there is no credible contention of a continuity of decreased hearing acuity or hearing loss from service. As such, the provisions of 38 C.F.R. § 3.303(b) are not for application. As to the Veteran’s general contentions that his hearing loss disability was incurred in or is otherwise related to his service, the Board finds his opinions to be of less probative weight. Although the Veteran may be competent to report sensing decreased hearing acuity, the Veteran has not contended that he has been experiencing decreased hearing acuity from service and, to the extent that he is making such a claim, the Board finds such contentions less probative in light of his denial of a history of hearing loss in March 1973 multiple years after separation from service. Given the absence of credible continuity of symptomatology from service and the Veteran’s lack of education, training, and experience in regards to diagnosing a hearing loss disability and relating such disability to noise exposure years prior to the diagnosis and onset of symptoms, the Board affords his representations as to a relationship between his current bilateral hearing loss disability and in-service noise exposure no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In light of the evidence, the Board concludes that the preponderance of the credible evidence is against the bilateral hearing loss and tinnitus claims, and that service connection for a bilateral hearing loss disability and tinnitus is not warranted. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 3. Entitlement to service connection for residuals of TBI 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran contends that he incurred a TBI as a result of an in-service grenade explosion and subsequently developed PTSD due to that same incident. April 1965, March 1966, April 1967, August 1969, and March 1973 Reports of Medical Examination included normal examination findings as to the head, neurologic, and psychiatric systems. In an April 1965 Report of Medical History prior to entrance into service the Veteran reported a history of frequent trouble sleeping, frequent or terrifying nightmares, and depression or excessive worry. In a March 1966 Report of Medical History, the Veteran reported a history of frequent or severe headaches, dizziness or fainting spells, and frequent or terrifying nightmares. These problems were noted to be “Related to nervousness” and indicated that the Veteran had had no problems in the past few months. In April 1967 and March 1973 Reports of Medical History, the Veteran denied a history of head injury, dizziness, frequent or severe headaches, frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. In an August 1969 Report of Medical History, the Veteran denied a history of dizziness, frequent or severe headaches, frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. In November 2015, the Veteran established care with VA. At that time, he reported a post-service history as a truck driver. On examination, his head was normocephalic and atraumatic. His eyes were equal, round, and reactive. Neurological examination was normal, as the Veteran was fully oriented, with intact judgment, insight, recent memory, and remote memory. November 2015 depression and PTSD screens were negative. At that time, the Veteran denied any past military trauma. In a January 2016 statement, the Veteran indicated that he had PTSD that began in October or November of 1965 during basic training when a lieutenant accidently threw a grenade near a bunker that could not be retrieved in time. Those close by threw themselves to the ground and when the grenade exploded it felt like being hit by a car or train. Afterwards, the Veteran’s and others’ ears were bleeding, hurting, and ringing. A medic cleaned up the service members and they were sent to the barracks to rest. There was no mention of loss of consciousness or treatment for a concussion. A July 2016 VA Memorandum made a formal finding of a lack of information required to corroborate stressors associated with the Veteran’s claim for service connection for PTSD. The RO discussed how the Joint Services Records Research Center (JSRRC) was unable to corroborate the Veteran’s reported stressor regarding an exploded grenade with resulting injury. In November 2018, the Veteran submitted a statement indicating that he experienced trouble sleeping at night and also had nightmares and depression. He had not sought medical treatment because he did not want to be put on medication. In an April 2020 statement, the Veteran’s representative contended that the in-service grenade explosion less than 10 feet from the Veteran “caused noise inducted hearing problems to include tinnitus. The explosion and force of fall caused concussion and PTSD. [The Veteran] vividly remember[s] this incident and has nightmares and anxiety because of it.” During his November 2020 Board hearing, the Veteran discussed the claimed in-service grenade incident as being the cause for his claimed TBI and PTSD. He did not recall any specific diagnosis of PTSD or ongoing treatment for mental health problems. Thus, the record is unclear as to whether the Veteran has or had a TBI or residuals thereof or an acquired psychiatric disorder. Even were the Board to presume such disabilities for the purpose of this decision alone the Board finds that these disabilities did not have their onset in service and are not otherwise caused by such service, to include the claimed incident involving an exploding grenade. In reaching that conclusion, the Board has considered the Veteran’s current contentions that he has experienced ongoing mental health problems since the claimed October or November 1965 grenade explosion. Similarly, the Veteran now contends that after the grenade incident he experienced dizziness, headaches, and other symptoms that he contends are or were manifestations of a TBI incurred as a result of the grenade incident. The Board has “the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.” Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the “inherent characteristics” of the Veteran’s current statements as to ongoing symptoms following a grenade explosion during basic training are inconsistent with the contemporaneous lay and medical record. Specifically, the Veteran reported certain mental health symptoms such as nightmares and depression at the time of his entrance into service and before the claimed grenade incident during basic training. In addition, while in March 1966 the Veteran reported a history of dizziness, headaches, and nightmares he attributed these problems to symptoms associated with nervousness and not to any specific head injury as a result of a grenade explosion or to any mental health symptoms related to that same incident. Indeed, on multiple occasions in the years thereafter the Veteran specifically denied a history of head injury, as well as a denial of dizziness, headaches, and mental health symptoms. In a November 2015 VA primary care encounter, no head symptoms were reported or noted. In light of the foregoing, the Board finds his representations as to symptom onset and continuity of symptoms from October or November 1965 during service to be less probative. During the Board hearing, the Veteran acknowledged that he had not received treatment or diagnoses of a mental health disorder or residuals of a TBI but had received counseling by a clergyman. The Board acknowledges the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. In this case, however, the Veteran specifically denied a history of head injury on multiple occasions in the years after the claimed October or November 1965 grenade explosion and also denied an ongoing history of problems with dizziness, headaches, or mental health problems. Had he been experiencing ongoing neurologic problems due to his now claimed head injury the Board finds it reasonable to conclude that the Veteran would have reported these problems during the multiple Reports of Medical History after 1966 and, indeed, would have reported the head injury that he now contends occurred in 1965. Instead, however, the Veteran specifically denied a past head injury or associated symptoms. Similarly, he denied ongoing mental health symptoms. The foregoing calls into serious question whether the claimed incident involving the grenade occurred or, if it did, the severity of the Veteran’s symptoms in the immediate aftermath of the incident. As such, the Board finds the Veteran’s current representations significantly outweighed by the contemporaneous evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant’s credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran’s statements, it may consider whether self-interest may be a factor in making such statements). VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeals must therefore be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.