Citation Nr: 21003007 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-24 833 DATE: January 19, 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 sensorineural hearing loss did not manifest in active duty service or within one year of separation from active duty service. Bilateral sensorineural hearing loss is not otherwise attributable to service. 2. The competent, credible, and probative lay and medical evidence shows that the Veteran experienced tinnitus while serving as a artilleryman but current tinnitus did not manifest until later in life, is associated with current hearing loss, and is not caused by any aspect of service including artillery noise. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § 1110, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from November 1961 to November 1963. The case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing scheduled for December 1, 2020 but failed to appear with no good cause shown; therefore, the hearing request is considered withdrawn. In a January 2021 report of information, the writer contacted the Veteran and indicated that the Veteran was withdrawing his appeal and hearing request, and that the Veteran stated that he had submitted a withdrawal request recently. However, there is no written withdrawal request of record. See January 2020 Hearing Related. Service Connection The Veteran's contends that his bilateral sensorineural hearing loss and tinnitus were incurred in, or aggravated by, active duty service. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases to include bilateral sensorineural hearing loss maybe presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) Evidence Service personnel records show that the Veteran served in artillery units and as a loader and commander of tracked vehicles armor units. Exposure to loud noise from artillery fire is acknowledged. Service treatment records (STR’s) are associated with the claims file. An August 1961 induction physical examination report indicated that there were no ear abnormalities. A whisper test was satisfactory but no audiometric test was performed. Outpatient records are silent for any ear or hearing symptoms. In a September 1963 report of medical examination at discharge, the clinical evaluation revealed normal ears and drums. The Veteran stated that he was in good health and denied ever having running ears and wearing a hearing aid. In addition, the Veteran wrote a note indicating that he had poor hearing since in artillery. Nevertheless, the Veteran’s audiological examination testing showed puretone thresholds in both ears as 15 or 20 decibels. See April 2018 STR-Medical, p.17-20. The Veteran’s VA treatment records are associated with the claims file. In an August 2003 VA treatment note, a clinician noted the Veteran had chronic tinnitus and hearing loss. See April 2018 Capri, p.230. In April 2018, the Veteran was afforded a VA hearing loss and tinnitus examination. The examiner reviewed the claims file; considered the Veteran’s reports, and conducted an evaluation. The examiner noted bilateral sensorineural hearing loss. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 25 35 40 50 80 51 LEFT 30 40 50 65 80 59 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. The examiner noted bilateral sensorineural hearing loss in the 500-4000 Hz. The examiner stated that the Veteran’s hearing loss did not impact his ordinary conditions of daily life, including his ability to work. The Veteran reported military noise exposure from artillery and howitzers. The Veteran also reported that hearing protection was not worn. The Veteran denied civilian occupational/ recreational noise exposure and ear infections/ surgeries or a history of head/ear trauma. The Veteran stated that his brothers were hard of hearing. The examiner stated that no STR’s were found in his records. In terms of tinnitus, the examiner indicated that the Veteran reported that his constant tinnitus began after service. The examiner found that it was less likely than not that the Veteran’s tinnitus was the result of military noise exposure. The examiner gave the vague rationale that it was not related to military noise exposure; because the Veteran did not associate the onset with his time during service. The Veteran’s tinnitus did not impact his ordinary conditions of daily life, including his ability to work. In May 2018, the April 2018 VA examiner provided an addendum hearing loss and tinnitus medical VA opinion. The examiner reviewed the claims file; considered the Veteran’s accounts and conducted an evaluation. The examiner stated that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that an August 1961 test showed a 15/15 for a spoken voice test for each ear. Also, the examiner stated that the September 1963 report of medical examination showed hearing within normal limits from 500-6000 hertz (Hz) for each ear. The audiologist indicated that her opinion on the Veteran’s tinnitus etiology remained the same. In a June 2018 statement in support of claim, the Veteran requested reconsideration for his claims for hearing loss and ringing in his ears. He indicated he started to notice “popping” and “ringing” in his ears when he was on a 155 Howitzer daily for approximately a year and a half; as well as being in training on regular artillery and weapons. The Veteran described the hearing as sounding like early Spring; with crickets, birds and locusts being out. In addition, the Veteran stated that they were never given hearing protection when they worked with large guns. The Veteran stated that he did not remember receiving a hearing test when he was discharged and was told not to complain about the ringing in his ears while in-service, so he would not be known to complain. He indicated that he felt as though with the weapons and artillery that he was surrounded by that the ringing could have only been due to his time in service. See June 2018 VA21-4138 Statement In Support of Claim, p.2. Hearing Loss The Board finds that service connection for bilateral hearing loss is not warranted. The evidence indicates a current disability and hazardous noise exposure. However, there is insufficient competent evidence of record which establishes a nexus between the Veteran's current bilateral hearing loss disability and his in-service noise exposure. As to this issue, the Board finds the most probative evidence of record to be the April 2018 and May 2018 VA addendum opinions, which provided a negative opinion as to service connection. The opinions were provided by an audiologist who reviewed the Veteran's claims file and cited to evidence of record. An adequate rationale was provided in the May 2018 addendum opinion to justify the negative opinion. The Board finds this opinion to be highly probative at to the issue of nexus and additionally notes that there is no competent opinion of record contrary to the audiologist's conclusion. In short, this negative opinion is the most probative evidence of record as to the issue of whether a nexus exists between the Veteran's current bilateral hearing loss disability and his active service. In addition, entitlement to service connection is not warranted based on the presumption related to chronic diseases. The Board notes that the Veteran's bilateral hearing loss disability is a chronic disease for purposes of 38 C.F.R. § 3.309. The evidence did not indicate that a bilateral hearing loss disability manifested during service. The Veteran did not seek medical attention for or make note of any hearing loss while in the service and hearing loss was not documented until many years after service. The earliest medical record of potential hearing loss is found in a 2003 VA treatment record. In short, the evidence does not indicate that a bilateral hearing loss disability manifested in service or within one year of the Veteran's separation from active service in November 1963. In addition, a continuity of symptomatology is not shown for the Veteran's bilateral hearing loss disability. As discussed above, the Board does not find any assertion of a continuity of symptomatology related to bilateral hearing loss to be outweighed by other evidence. Therefore, entitlement to service connection is also not warranted on this basis. The Veteran is competent to testify to his observations and symptoms of hearing loss. However, the Veteran's lay statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran's statement as to whether his hearing loss is related to in-service noise exposure is outweighed by the other evidence of record. The Board finds that the medical evidence is more probative and more credible than the lay opinions of record. For the foregoing reasons, the preponderance of evidence is against a finding of service connection for a bilateral ear hearing loss disability. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b). Tinnitus Tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (observing that "ringing in the ears is capable of lay observation.") Moreover, to the extent that tinnitus is capable of lay observation, the Veteran is competent to report his symptoms. Therefore, his assertions regarding in-service onset thereinafter are both competent and probative. However, he did not report a continuity of these symptoms after service but rather that it started after service. As stated above, the Veteran was afforded a VA audiological examination in April 2018 and an addendum opinion in May 2018. The audiologist reviewed the claims file; noted the Veteran's accounts; and conducted an evaluation. The audiologist indicated that the Veteran reported that tinnitus began after service. No other subjective accounts or information regarding the Veteran’s symptoms were included. As to the etiology of tinnitus, the audiologist opined that the Veteran had a diagnosis of tinnitus; a symptom associated with hearing loss and that it was known to be a symptom of hearing loss. Nevertheless, the audiologist provided a negative nexus opinion, merely based on the fact the Veteran did not the onset of tinnitus with his time during service. In the May 2018 addendum opinion, the audiologist stated her opinion regarding tinnitus remained the same. While the Board acknowledges the April 2018 and May 2018 VA audiologist's findings, it assigns probative weight to the audiologist's opinion. Firstly, the audiologist noted that the Veteran's reports of military noise exposure and his reports of hearing protection not being worn. Having acknowledged this noise exposure and tinnitus being a symptom of hearing loss, the audiologist did not have the subjective account provided by the Veteran in a June 2018 statement. The statement indicated that he started to notice “popping” and “ringing” in his ears when he was on a 155 Howitzer daily for approximately a year and a half; as well as being in training on regular artillery and weapons. The Veteran also stated that the hearing sounded like early Spring; with crickets, birds and locusts being out. He noted that he was told not to complain so as not to be known as a complainer. Although he reported tinnitus while firing the artillery, he did not make clear that it continued after service and in fact reported that his current tinnitus started after service. Therefore, the weight of competent and credible lay and medical evidence shows that the Veteran experienced tinnitus while serving on an artillery crew but that the tinnitus did not persist after service until onset later in life and is associated with the hearing loss, also onset later in life, and not caused by noise in service. Therefore, service connection for tinnitus is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.303, 3.304. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.