Citation Nr: 21005013 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-26 008 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 of record is against finding that the Veteran has had right ear hearing loss at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that left ear hearing loss began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1969 until his honorable discharge in March 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the St. Louis, Missouri Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2018, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain the Veteran’s VA treatment records for the period prior to October 2005 from the Biloxi, Mississippi VA medical center; ask the Veteran to complete a VA Form 21-4142 for VA to obtain audiological testing results connected to his prior employment at an airport; and to obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that the Veteran’s bilateral hearing loss disability and/or tinnitus are causally related to active service, including consideration of the January 1972 audiogram results reflecting abnormal hearing in the left ear at 4,000 Hz level because his threshold was 25. In response, in March 2019, the RO determined that there are no records from the Biloxi, Mississippi VA medical center; in March 2019, the RO requested that the Veteran complete VA Form 21-4142 and VA Form 21-4142a; and in December 2019 (two reports, one for hearing loss, one for tinnitus), the RO obtained an addendum opinion from a VA examiner. The Board finds that these actions constitute substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including tinnitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his hearing loss is due to military hazardous noise exposure. First, the Board finds that there is evidence of a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies in the right ear and sensorineural hearing loss in the frequency range of 500-4000 Hz in the left ear. See October 2012 VA audiological examination. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). VA has determined that there is a high probability that the Veteran was exposed to hazardous noise exposure due to the Veteran’s military occupational specialty (MOS) as a helicopter (CH-47) flight engineer. Therefore, the Board finds that the preponderance of the evidence indicates that the Veteran was exposed to hazardous noise exposure during service. Third, the Board finds that the evidence of record does not support a finding that the Veteran’s hearing loss is related to active service. The Veteran was afforded a VA examination in October 2012. The October 2012 VA examiner opined that the Veteran’s hearing loss is less likely than not (less than 50 percent probability) related to his in-service hazardous noise exposure. The October 2012 VA examiner noted that the Veteran’s hearing was assessed three times during military service with normal hearing across the frequency range used in determining claims and his current hearing reflects normal hearing for the right ear and sensorineural hearing loss at 3000 Hz and above in his left ear, noting that the asymmetry of the hearing is an additional basis for the negative nexus opinion as both ears had equal opportunity for hearing loss from hazardous noise exposure. In accordance with the August 2018 Board remand, the RO obtained an addendum opinion in December 2019. The December 2019 VA examiner explained that hazardous noise injury typically represents in frequencies above 1000 Hz. The December 2019 VA examiner noted that the Veteran’s entrance examination demonstrates a 15 dB shift at 4000 Hz and a 25 dB shift at 4000 Hz at separation and explained that a 10dB shift (from 15 dB to 25 dB) is not considered a significant change and both are considered within normal limits by American Speech-Language-Hearing Association. The December 2019 VA examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran’s hazardous noise exposure during service had a negative impact on his hearing, in-service examinations show no significant high frequency shift, and that it is possible that the Veteran’s post-service hazardous occupational noise exposure has impacted his hearing. The Board notes that the Veteran provided a private provider opinion in March 2012 (that was drafted in January 2012). The private provider opined that it is more likely than not that the Veteran’s hearing loss is related to his military noise exposure and it may have worsened as a civilian based on case history, notched configuration of hearing loss, and onset of tinnitus. However, although the private provider submitted a positive nexus opinion, the examiner did not discuss the Veteran’s post-service hazardous noise exposure (including the Veteran’s over three decades working on aircraft as a refueler and non-occupational hazardous noise, such as his ownership of a dirt bike). However, because the VA examiners evaluated the complete record, including post-service hazardous noise exposure, the Board finds the VA examinations to be more probative than the private provider opinion. The Board notes that the Veteran’s attorney asserts that the private provider considered only the Veteran’s military noise exposure, that her opinion is “more well supported.” See March 2020 Statement of Accredited Representative in Appealed Case (VA Form 646). The Board cannot concur with the opinion of the Veteran’s representative, that evaluating hearing loss over four decades post-service without consideration of the Veteran’s post-service hazardous noise exposure, would be more probative. Accordingly, entitlement to service connection for bilateral hearing loss is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus is due to military hazardous noise exposure. The evidence of current disability is not in question. 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, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service “because ringing in the ears is capable of lay observation”). As noted above, VA has determined that there is a high probability that the Veteran was exposed to hazardous noise exposure due to the Veteran’s military occupational specialty (MOS) as a helicopter (CH-47) flight engineer. While the Veteran has been afforded multiple VA examinations for the issue of entitlement to service connection for tinnitus. The first VA examination was afforded in October 2009 related to the October 2009 final rating decision. The October 2009 VA examiner opined that the Veteran’s tinnitus is less likely as not (less than 50 percent probability) was caused by or a result of military acoustic trauma because the Veteran was unable to correlate the onset of his tinnitus to a specific incident during his tour of duty and stated that his tinnitus began approximately 35 years post military service. The Veteran was afforded a second VA examination in October 2012. The October 2012 VA examiner opined that the Veteran’s tinnitus is at least as likely as not related to the Veteran’s hearing loss because tinnitus is known to be a symptom associated with hearing loss and less likely than not (less than 50 percent probability) caused by or a result of military noise exposure because the absence of symmetrical hearing loss and normal hearing at discharge indicates this condition is not related to military acoustic trauma. The Board notes, as discussed above, that the Veteran’s hearing loss is not service connected. The Veteran was afforded a VA examination in October 2012. The October 2012 VA examiner opined that the Veteran’s hearing loss is less likely than not (less than 50 percent probability) related to his in-service hazardous noise exposure. The October 2012 VA examiner noted that the Veteran’s hearing was assessed three times during military service with normal hearing across the frequency range used in determining claims and his current hearing reflects normal hearing for the right ear and sensorineural hearing loss at 3000 Hz and above in his left ear, noting that the asymmetry of the hearing is an additional basis for the negative nexus opinion as both ears had equal opportunity for hearing loss from hazardous noise exposure. In accordance with the August 2018 Board remand, the RO obtained an addendum opinion in December 2019. The December 2019 VA examiner explained that hazardous noise injury typically represents in frequencies above 1000 Hz. The December 2019 VA examiner noted that the Veteran’s entrance examination demonstrates a 15 dB shift at 4000 Hz and a 25 dB shift at 4000 Hz at separation and explained that a 10dB shift (from 15 dB to 25 dB) is not considered a significant change and both are considered within normal limits by American Speech-Language-Hearing Association. The December 2019 VA examiner concluded that it is less likely than not (less than 50 percent probability) that the Veteran’s hazardous noise exposure during service had a negative impact on his hearing (including tinnitus), in-service examinations show no significant high frequency shift, and that it is possible that the Veteran’s post-service hazardous occupational noise exposure has impacted his hearing. The Board notes that the Veteran provided a private provider opinion in March 2012 (that was drafted in January 2012). The private provider opined that it is more likely than not that the Veteran’s hearing loss is related to his military noise exposure and it may have worsened as a civilian based on case history, notched configuration of hearing loss, and onset of tinnitus. However, although the private provider submitted a positive nexus opinion, the private provider did not review the prior VA examination(s), did not discuss post-service hazardous noise exposure (including the Veteran’s over three decades working on aircraft as a refueler and non-occupational hazardous noise, such as his ownership of a dirt bike). However, because the VA examiners provided a more thorough examination and rationale to their opinons, the Board finds the VA examinations to be more probative than the private provider opinion. (Continued on the next page)   Accordingly, entitlement to service connection for tinnitus is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.