Citation Nr: 21004757 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-50 837 DATE: January 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss began in service, manifested to a compensable degree within one year of service, or is otherwise related to an in-service disease or injury, to include noise exposure. 2. The preponderance of the evidence is against a finding that the Veteran’s tinnitus began in service, manifested to a compensable degree within one year of service, or is otherwise related to an in-service disease or injury, to include noise exposure. 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; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force on active duty from June 1972 to September 1974. The issues come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the above claims in July 2017, to provide the Veteran VA hearing loss and tinnitus examinations. In November 2018, and again in October 2020, the Board remanded to provide addendum opinions addressing the nature and etiology of the Veteran’s claimed conditions. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, for chronic diseases shown in service, the third element of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from bilateral hearing loss caused by in-service noise exposure. 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 Board acknowledges that the Veteran has a current diagnosis of bilateral hearing loss. The Veteran’s audiological assessment from the March 2018 VA examination shows a diagnosis of sensorineural bilateral hearing loss with puretone thresholds that meet the above VA criteria for impaired hearing. The Board also recognizes the Veteran’s lay statements recounting in-service exposure to hazardous noise from various weapons and pre-flight testing of jet engines and afterburners. Additionally, the Veteran noted during the March 2018 VA examination that he experienced temporary hearing loss for five to six minutes in the early 1970s after being exposed to these loud sounds. Thus, the question of service connection turns on whether there is evidence of a nexus between the claimed in-service noise exposure and the Veteran’s present hearing loss. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s service treatment records (STRs) show no complaints of hearing loss during service. The Veteran’s August 1974 separation physical examination noted hearing within normal limits. Further, the Veteran has provided no medical evidence that relates his hearing loss to his active service. VA treatment records from February 2009 noted the Veteran’s hearing within normal limits, and that he was able to hear normal conversation without aid from a distance of 20 feet. The earliest medical treatment record on file that shows a diagnosis of hearing loss is the March 2018 VA audiological examination, 44 years after discharge from service. As indicated above, the Veteran underwent a VA examination in March 2018. The Veteran reported difficulty hearing the television without an increased volume setting, hearing his wife, hearing the doorbell ring, and hearing the dog barking. The Veteran noted his bilateral hearing loss comes and goes. The Veteran did not remember when his hearing loss started but stated his hearing loss came on gradually. In July 2020, the RO provided an addendum medical opinion to address the etiology of the Veteran’s bilateral hearing loss. The VA examiner reviewed available records and the Veteran’s case file, and provided the medical opinion that the Veteran’s hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner rationalized that the Veteran’s separation examination showed normal hearing per his puretone audiogram at separation. The examiner noted the Veteran’s STRs showed no sign of complaints of hearing loss during service. The VA examiner cited to peer-reviewed medical literature and stated that hearing loss occurs from exposure to military noise immediately; it is not delayed. The examiner noted that hearing loss due to acoustic trauma 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, the VA examiner provided that there is a lack of continuity of care to connect the Veteran’s current hearing loss with in-service noise exposure. In November 2020, pursuant to the Board remand, the RO sought a clarifying medical opinion from the same VA examiner who provided the July 2020 opinion. The examiner provided an addendum opinion related to a study cited in the July 2020 opinion covering potential delayed onset of hearing loss due to military noise exposure. The examiner noted laboratory studies regarding delayed onset of hearing loss in animals. The examiner, however, opined that the delayed hearing loss based on noise exposure has not been proven to be true. Further, the examination noted there have been no studies done on humans looking at or proving delayed onset hearing loss after acoustic trauma is medically possible. The Board finds the VA examiner’s medical opinions, offered in July 2020 and November 2020, to be probative evidence against a finding that the Veteran’s bilateral hearing loss incurred in or was the result of his active duty service. The July 2020 and November 2020 opinions, taken together, were based on a thorough review of the Veteran's medical records, with consideration of the Veteran’s lay assertions, and were supported by a fully articulated rationale with citations to medical literature. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board recognizes the Veteran’s assertion that his bilateral hearing loss is related to the in-service noise exposure. Lay persons are competent to provide opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, since the cause of hearing loss can be a complex medical matter and the onset can occur later in life, the Veteran as a layperson without the appropriate medical training and expertise, is not competent to provide a probative opinion as to an etiological relationship between hearing loss and a prior exposure to noise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also considers whether service connection for hearing loss is warranted on a presumptive basis, but the record contains no evidence that the Veteran had hearing loss to a compensable degree within one year after discharge from service or that he experienced hearing loss continuously since separation. See 38 C.F.R. § 3.307. To the extent that the Veteran asserted he experienced hearing loss since discharge from service, these statements are inconsistent with the Veteran’s objective VA medical treatment records noting normal hearing prior to the March 2018 VA examination, 44 years after separation. Although the absence of medical treatment records since service is not dispositive, the fact of this chronology must be considered as it bears probative evidence against a nexus between the Veteran’s current hearing loss and his in-service injury. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Upon considering the probative weight of the evidence of record, the Board concludes that the Veteran’s current bilateral hearing loss is not related to his active service. The preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to service connection for tinnitus The Veteran contends that he suffers from tinnitus and that it is related to in-service exposure to harmful noise. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). As with the Veteran’s hearing loss claim, the Board acknowledges that the evidence establishes that during service he was exposed to harmful noise. The Veteran’s STRs are silent as to a diagnosis of tinnitus, and the August 1974 separation examination showed normal findings for the Veteran’s hearing. Further, the Veteran has provided no medical evidence that relates his tinnitus to his military service, or records that show complaints of tinnitus prior to the Veteran’s May 2014 claim for compensation, 40 years after separation. In his May 2014 statement in support of his claim, the Veteran reported experiencing a high-pitched noise in his ears daily. In March 2018, the Veteran underwent a VA examination. The Veteran reported he heard a sound like a "high-pitch dog whistle." The Veteran noted experiencing this sound, lasting 30 seconds, two to three times per year. The Veteran could not state when the onset occurred. In July 2020, the RO provided an addendum opinion to address the nature of the Veteran’s complaint of tinnitus. The VA examiner noted the most prevalent condition related to tinnitus is high frequency hearing loss. The examiner noted the Veteran’s separation examination recorded no hearing loss upon exiting active service. The VA examiner provided the medical opinion that the Veteran’s claimed condition was less likely than not a result of military noise exposure. In support, the VA examination cited to medical literature, stating, as "the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases.” The examiner stated that symptoms of tinnitus incur immediately after exposure to military noise; however, the Veteran’s STRs were silent for any complaints of tinnitus. Additionally, the VA examiner noted there was a lack of continuity of care since service. The VA examiner rationalized that any acoustic trauma loud enough to cause tinnitus would also have caused a threshold shift in hearing sensitivity. The examiner noted the Veteran’s in-service puretone audiograms did not show a shift in hearing. Finally, the VA examiner cited to medical literature, and stated the Veteran’s description of sporadic tinnitus symptoms provided at the March 2018 VA examination did not meet the current definition of persistent and recurrent, defined as occurring more than once a week for more than five minutes at a time, consistent with a diagnosis of abnormal tinnitus. As discussed above, the VA examiner provided a clarifying opinion in November 2020, addressing the medical studies regarding the potential implications of acoustic trauma and delayed onset hearing loss. The VA examiner maintained the negative nexus opinion provided in the July 2020 examination regarding the Veteran’s claimed tinnitus and military noise exposure. The Board recognizes the Veteran’s lay evidence offered in his May 2014 statement in support, that he experienced a high-pitched noise in his ears daily. The Board acknowledges that, as a lay person the Veteran is competent to provide opinions on observable symptomatology such as tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002); see aslso Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Veteran’s lay statements provide little probative value, as the evidence of record contains no testimony of symptoms or the chronology of the onset of tinnitus prior to May 2014. The Veteran lacks the medical training and expertise to provide a probative medical opinion that the symptoms of tinnitus, first noted in the record in 2014, were caused or aggravated by damage he sustained to his ears 40 years prior. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also considers whether service connection for tinnitus is warranted on a presumptive basis. The record contains no evidence that the Veteran had tinnitus to a compensable degree within 1 year after discharge from service or that he experienced tinnitus continuously since separation. The lack of lay testimony on record stating the Veteran has experienced tinnitus continuously since service is consistent with private treatment records from November 2016 and VA medical treatment records from July 2020, in which the Veteran denied he experienced tinnitus symptoms. Upon a review of the evidence of record, the Board finds the July 2020 and November 2020 VA examiner’s medical opinions are the most probative evidence of record that there is no causal relationship between the Veteran’s disability and service. The VA medical opinions were based on a thorough review of the Veteran’s medical treatment records and were supported by a fully articulated rationale with citations to medical literature. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, the Board finds the preponderance of the evidence weighs against the Veteran’s claim for service connection. Thus, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.