Citation Nr: 21061307 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 15-28 502 DATE: October 1, 2021 ORDER Service connection for hearing loss, left ear, is denied. Service connection for hearing loss, right ear, is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. Left ear hearing loss is not shown for VA disability purposes. 2. The weight of the evidence is against a finding that right ear hearing loss was manifested during the Veteran's period of active service or within a year of separation from service, or that it is otherwise the result of a disease or injury during active service. 3. The weight of the evidence is against a finding that tinnitus was manifested during the Veteran's period of active service or within a year of separation from service, or that it is otherwise the result of a disease or injury during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hearing loss, left ear, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for hearing loss, right ear, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131; 38C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1983 to June 1992. In a January 2019 decision, the Board of Veterans' Appeals (Board) denied service connection for bilateral hearing loss and tinnitus. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2020 Memorandum Decision and Order, the Board's decision was vacated and remanded for action consistent with the decision. These matters were remanded in March 2021. The Board acknowledges that the Veteran's attorney has challenged the adequacy of the VA medical examination and opinion obtained in April 2021. Specifically, the Veteran's attorney argues that the examiner used "too high of a standard" as the Veteran is entitled to the "benefit of the doubt." Upon review of the examination report, the examiner opined that his right ear hearing loss and tinnitus are less likely than not due to service. The examination report does not reflect that the examiner failed to afford the Veteran the benefit of the doubt in formulating the negative etiological opinions. In formulating the opinions, the examiner considered and discussed both the Veteran's lay assertions and the medical evidence of record. The Veteran's attorney also stated that the Supplemental Statement of the Case (SSOC) was "confusing" as it stated that the Veteran does and does not have hearing loss. While the SSOC references bilateral hearing loss and then separately references the right and left ear, the SSOC sufficiently outlines the finding that there is no hearing loss in the left ear as will be discussed below, and the finding that service connection is not warranted for hearing loss, right ear, and tinnitus. While the Veteran's attorney may believe the SSOC is "illogical" it was based on a review of the medical and lay evidence of record, as is the Board's decision. The Veteran's attorney stated that VA lost the Veteran's medical records without any further discussion. Per the Appellant's Brief submitted to the Court, there were records lost during the Veteran's active service, not by VA. There is no indication that VA has not obtained any and all records available, to include the Veteran's service treatment records. Overall, the Board finds the April 2021 VA examination and medical opinion is adequate to decide the case because it is predicated on a review of the claims file, including the Veteran's medical history and lay assertions, and the Veteran's current symptomology. The opinion also sufficiently addresses the medical issues in this case and addressed whether his right ear hearing loss and tinnitus were due to his conceded noise exposure and ruptured right membrane, which allows the Board to make a fully informed determination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues have been met. 38 C.F.R. § 3.159(c)(4). Neither the Veteran nor his attorney has raised any additional issues involving the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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). Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Furthermore, clinical hearing loss is shown where the auditory thresholds exceed 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In this case, the Veteran contends that he has current hearing loss and tinnitus as a result of exposure to loud noise during service. His DD Form 214 lists his primary specialty as ammunition technician and recruiter. He also testified as to firing weapons during service. 07/17/2018 Hearing Transcript at 3. Exposure to loud noise is consistent with the circumstances and conditions of his service; therefore, the Board finds the Veteran's account of military noise exposure credible and such exposure is conceded. Service treatment records do not reflect objective findings of hearing loss or tinnitus. On an October 1989 Report of Medical History, the Veteran checked the 'Yes' box for 'hearing loss' and reported a ruptured right membrane. 12/17/2014 Medical Treatment Record-Government Facility at 29. There was no complaint of tinnitus. His ears were clinically evaluated as normal on Report of Medical Examinations dated in October 1989 and May 1992. Id. at 8, 26. A September 2014 audiological examination reflects normal hearing for VA purposes, to include 100 percent speech discrimination scores. See 38 C.F.R. § 3.385. The Veteran submitted an August 2020 private audiological evaluation, which reflects audiometric findings in graph format; the numeric values were not indicated. As the evaluation possibly showed hearing loss in the right ear, the Veteran was afforded another examination. In April 2021, the Veteran underwent a C&P examination. Hearing loss was shown in the right ear per § 3.385 but such was not shown in the left ear. The examiner diagnosed sensorineural hearing loss in the right ear and normal hearing in the left ear. Left ear Per such findings, hearing loss is not shown with regard to the left ear. VA outpatient records do not reflect any complaints or treatment for hearing loss, left ear. As detailed above, service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 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. For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Specifically, none of the auditory thresholds in any of frequencies from 500 through 4000 Hertz reach 40 decibels. None of the auditory thresholds for at least three of the frequencies (500, 1000, 2000, 3000, or 4000 Hertz) are 26 decibels or greater. His speech recognition score was 100 percent in September 2014, and 94 percent in April 2021. Consequently, in this case, the Veteran's hearing, left ear, is within normal limits for VA purposes. 38 C.F.R. § 3.385. In this regard, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In other words, in the absence of proof of present disability, in this case impaired hearing in the left ear per § 3.385, there can be no valid claim. The post-service examinations show that the Veteran does not have hearing loss in the left ear as defined by § 3.385. As there is no probative evidence of a hearing loss disability in the left ear, as defined by the applicable regulation, the claim of service connection for hearing loss, left ear, must be denied. As a disability is not shown, the first element of a service connection claim has not been met, and thus it is not necessary to discuss an etiological relationship to service. The Board acknowledges the statements from the Veteran with respect to his noise exposure experienced during service. While the Board finds these assertions credible, the fact remains that he does not have a hearing loss disability in the left ear for VA purposes. As the preponderance of the evidence is against the claim of service connection for hearing loss, left ear, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107. Right ear As detailed, the record establishes, and the Board concedes, that the Veteran had noise exposure in service and per the April 2021 examination has hearing loss in the right ear. The outcome of the appeal turns on whether the hearing loss, right ear, is related to the noise exposure or other disease or injury in service. As detailed previously, service treatment records do not reflect objective findings of hearing loss. On an October 1989 Report of Medical History, the Veteran checked the 'Yes' box for 'hearing loss' and reported a ruptured right membrane. 12/17/2014 Medical Treatment Record-Government Facility at 29. His ears were clinically evaluated as normal on Report of Medical Examinations dated in October 1989 and May 1992. Id. at 8, 26. A September 2014 audiological examination reflects normal hearing for VA purposes, to include 100 percent speech discrimination scores. See 38 C.F.R. § 3.385. The Veteran submitted an August 2020 private audiological evaluation, which reflects audiometric findings in graph format; the numeric values were not indicated. As the evaluation possibly showed hearing loss in the right ear, the Veteran was afforded another examination. 10/31/2020 Medical Treatment Record-Non-Government Facility. In April 2021, the Veteran underwent a C&P examination. Hearing loss was shown in the right ear per § 3.385, and the examiner diagnosed sensorineural hearing loss in the right ear. The examiner opined that the Veteran's hearing loss of the right ear is less likely as not due to service. The examiner acknowledged the in-service audiometric results. The Veteran reported having hearing loss during his time in service due to rupturing his right eardrum while in service twice. The examiner noted that his exit evaluation reflects this incident; however, it is not found elsewhere in the medical file to due lost records. The examiner stated that while an eardrum rupture can cause a temporary conductive hearing loss it healed on its own and did not cause any permeant damage as evidenced by stable hearing thresholds during his military career. Hearing was well within normal limits at military separation. There was no indication of permanent acoustic trauma, report of tinnitus or loss of hearing was found during military service record review. The Veteran has a military occupational specialty of Ammunition Technician, which had a high probability of exposure to hazardous noise, therefore noise exposure is conceded, however there is no evidence of noise injury, specifically no permanent significant decrease in the pure tone thresholds from enlistment to separation from active military service nor report of tinnitus during military service. He currently has hearing loss in his right ear, which occurred after military service. Given the asymmetric unilateral hearing loss can be observed in veterans with noise exposure who frequently shoot firearms, the Veteran was asked and reported he was a right- handed shooter. Veterans who experience an asymmetric hearing loss from frequent firearm exposure will see a decline in hearing in the opposite ear of their shooting arm. In this Veteran's case we should expect a left ear hearing loss as result of routine firearm exposure. However, the Veteran's unilateral asymmetric loss occurs in the right ear which further supports that the military did not cause his hearing loss. Given the stable normal hearing thresholds while in service, the Veteran's hearing loss is less than likely a result of military noise exposure. As detailed above, while the Veteran's service records reflect his report of suffering from a ruptured eardrum, service treatment records do not reflect any findings of hearing loss. As detailed, while hearing loss of the right ear was not diagnosed at the time he underwent an examination in September 2014, it was shown at the August 2020 examination, thus 28 years after separation from service. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran's condition for many years is a factor for consideration. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). Moreover, as detailed above, the April 2021 examiner provided a negative opinion. The opinion was supported by a thorough analysis in consideration of the lay evidence and objective evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no contrary opinion of record. The April 2021 examiner's opinion is the most probative evidence of record as to whether current hearing loss, right ear, is due to active service. The Board acknowledges the treatise evidence submitted by the Veteran entitled 'Acceleration of Age-Related Hearing Loss by Early Noise Exposure' and 'Tinnitus with a Normal Audiogram: Physiological Evidence for Hidden Hearing Loss and Computational Model.' The Veteran has not presented any medical opinion evidence addressing the question of whether he has hearing loss of the right ear due to service. While medical treatise evidence can, in some circumstances, constitute competent medical evidence (see 38 C.F.R. § 3.159 (a)(1) (stating that competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses), both Federal regulation and case law preclude granting service connection predicated on a result of speculation or mere possibility. 38 C.F.R. § 3.102; see Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (a medical treatise submitted by an appellant that only raises the possibility that there may be some relationship between sickle cell anemia and the veteran's fatal coronary artery disease does not show a direct causal relationship between the two disorders such as to entitle the appellant to service connection for the cause of the veteran's death). The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated medical opinion. Sack v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). The documents submitted and cited, however, do not address the facts of the Veteran's specific case. Likewise, such articles and documents were not submitted in conjunction with an opinion from a medical professional. Rather, the only medical opinion of record is from a C&P examiner who opined that his hearing loss, right ear, is not due to service. The articles submitted by the Veteran are insufficient to establish a medical nexus opinion for causation. The Board has considered the Veteran's contention that a relationship exists between his hearing loss, right ear, and service. The Veteran, however, is not competent to offer an opinion as to the etiology of this condition as he does not have the requisite medical expertise. Indeed, a veteran's ability to render an opinion of etiology is limited to observable, immediate cause-and-effect relationships, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board is cognizant of the fact that the Veteran believes that he has hearing loss, right ear, due to in-service noise exposure and/or a ruptured membrane; however, he lacks the medical expertise necessary to diagnose a specific medical disability or conclude any condition is etiologically related to these exposures. As such, the Board finds the Veteran's assertions regarding the etiology of his hearing loss, right ear, to not be competent and hold no weight. However, due to his lay assertions, a VA opinion was sought, which was ultimately negative. As hearing loss, right ear, was not shown in service, and the records contain no suggestion of a causal link between his hearing loss, right ear, and active service, to include his conceded in-service noise exposure, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection. As the most probative evidence is against the claim, reasonable doubt does not arise, and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Tinnitus The record establishes, and the Board concedes, that the Veteran had noise exposure in service and has current tinnitus. The outcome of the appeal turns on whether the tinnitus is related to the noise exposure or other disease or injury in service. Service treatment records do not contain any complaints or diagnosis of tinnitus or ringing of the ears. On an October 1989 Report of Medical History, the Veteran checked the 'Yes' box for 'hearing loss' and reported a ruptured right membrane. 12/17/2014 Medical Treatment Record-Government Facility at 29. There was no complaint of tinnitus. His ears were clinically evaluated as normal in October 1989 and May 1992. Id. at 8, 26. The September 2014 VA audiological examiner could not provide an etiological opinion regarding tinnitus without resorting to speculation. The Veteran reported to the examiner that unilateral intermittent tinnitus began in his right ear in 1987 or 1988, following several right ear drum perforations. The examiner was unable to provide an etiological opinion regarding tinnitus without resorting to speculation. As detailed above, hearing was within normal limits. In May 2015, a VA examiner opined that it was less likely as not that the Veteran's tinnitus was due to service. The examiner noted that the Veteran reported to the audiology examiner the onset of right intermittent tinnitus beginning in 1987 or 1988 following several right ear drum perforations. There is no treatment record demonstrating hearing loss or treatment of any ear conditions. The examiner stated that given a lack of evidence that the Veteran in fact had a tympanic membrane perforation, it is difficult to opine that this would cause tinnitus. More commonly tinnitus occurs in the setting of sensorineural hearing loss. There has been a great deal of research into the etiology of tinnitus, but there is much that we do not yet understand regarding the etiology of this disease. The examiner stated that the Veteran more likely is suffering from idiopathic unilateral tinnitus, which would not be the result of disease, injury, or noise exposure in service. In July 2015, the May 2015 VA examiner offered an addendum opinion in consideration of the Veteran's reported tympanic membrane perforation. The examiner stated that while there is self-reported evidence of tympanic membrane perforation (which is not substantiated by actual physical examination documentation by medical personnel but still possibly occurred) the Veteran is without a sensorineural hearing loss, which would be typical of tinnitus. The examiner opined, after review of service treatment records, audiograms, history obtained from review of documentation, and prior opinions for this issue, that his tinnitus is consistent with idiopathic unilateral tinnitus and is less likely than so (less than 50% probability) to be related to his military service or reported history of tympanic membrane perforation. The examiner noted review of the conflicting medical evidence and opined that while there is a history of tympanic membrane perforation noted on exit exam where there was not one on his entrance examination, the opinion is based on the Veteran's audiograms, which do not support a typical cause of tinnitus. The examiner noted review of service treatment records and the Veteran's statement in support of his claim describing his chronology of events and symptoms. The April 2021 C&P examination report reflects a date of onset in 1989 and reports of intermittent episodes 2 to 4 times per week lasting a few minutes each episode in the right ear. The examiner opined that his tinnitus is less likely than not due to service. The examiner noted that tinnitus began reportedly in 1989, which per his exit evaluation in May 1992 revealed normal hearing in both ears. Hearing loss occurred in one ear later on sometime after the 2014 C&P evaluation. The examiner stated that although the Veteran was subjected to significant hazardous noise exposure, his description of tinnitus is not compatible with chronic tinnitus criteria. "It seems that almost everyone experiences "transient ear noise," which typically is described as a sudden whistling sound accompanied by the perception of hearing loss (Kiang, Moxon, & Levine, 1970). No systematic studies have been published to date describing the prevalence and properties of transient ear noise; thus, anything known about this phenomenon is anecdotal. The transient auditory event is unilateral and seems to occur completely at random without anything precipitating the sudden onset of symptoms. Often the ear feels blocked during the episode. The symptoms generally dissipate within a period of about a minute. Although transient ear noise has been described as "brief spontaneous tinnitus" (Dobie, 2004), any reference to tinnitus in this book does not include this auditory phenomenon." Tinnitus Handbook for Audiologists, Tyler & Dauman 1992. The Veteran reports his tinnitus occurs mainly in the right ear and he has a pressure on the eardrum feeling lasting minutes in duration and in frequently (2-4x per week). This description follows the transient ear noise definition. Transient ear noise is NOT consistent with acoustic trauma or hazardous noise exposure. No acoustic trauma occurred given that hearing remained stable and normal throughout military career given the normal audiogram recorded on exit evaluation on 5/6/1992. Hearing loss and tinnitus are highly correlated. Transient ear noise is normal and is experienced across the general population. It is less likely than not (less than 50% probability) caused by or a result of military noise exposure As detailed above, while the Veteran reports experiencing tinnitus during service, service treatment records do not reflect any complaints. While the Board finds the Veteran's statements and assertions to be competent, the Board finds that the statements offered by the Veteran many years after separation from service to hold less probative weight. Moreover, as detailed above, both the May/July 2015 examiner and April 2021 examiner provided negative opinions. The collective opinions are supported by a thorough analysis in consideration of the lay evidence and objective evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295. 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no contrary opinion of record. The collective opinions of the May/July 2015 examiner and April 2021 examiner are the most probative evidence of record as to whether current tinnitus is due to active service. As noted above, the Board acknowledges the treatise evidence submitted by the Veteran entitled 'Acceleration of Age-Related Hearing Loss by Early Noise Exposure' and 'Tinnitus with a Normal Audiogram: Physiological Evidence for Hidden Hearing Loss and Computational Model.' The Veteran has not presented any medical opinion evidence addressing the question of whether he has tinnitus due to service. While medical treatise evidence can, in some circumstances, constitute competent medical evidence (see 38 C.F.R. § 3.159 (a)(1) (stating that competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses), both Federal regulation and case law preclude granting service connection predicated on a result of speculation or mere possibility. 38 C.F.R. § 3.102; see Utendahl v. Derwinski, 1 Vet. App. 530, 531 (1991) (a medical treatise submitted by an appellant that only raises the possibility that there may be some relationship between sickle cell anemia and the veteran's fatal coronary artery disease does not show a direct causal relationship between the two disorders such as to entitle the appellant to service connection for the cause of the veteran's death). The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated medical opinion. Sack v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus), and Mattern v. West, 12 Vet. App. 222, 228 (1999). The documents submitted and cited, however, do not address the facts of the Veteran's specific case. Likewise, such articles and documents were not submitted in conjunction with an opinion from a medical professional. Rather, the only medical opinion of record is from C&P examiners who opined that his tinnitus is not due to service. The articles submitted by the Veteran are insufficient to establish a medical nexus opinion for causation. The Board has considered the Veteran's contention that a relationship exists between his tinnitus and service. The Veteran, however, is not competent to offer an opinion as to the etiology of this condition as he does not have the requisite medical expertise. Indeed, a veteran's ability to render an opinion of etiology is limited to observable, immediate cause-and-effect relationships, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board is cognizant of the fact that the Veteran believes that he has tinnitus due to in-service noise exposure and/or a ruptured membrane; however, he lacks the medical expertise necessary to diagnose a specific medical disability or conclude any condition is etiologically related to these exposures. As such, the Board finds the Veteran's assertions regarding the etiology of his tinnitus to not be competent and hold no weight. However, due to his lay assertions, VA opinions were sought, which were ultimately negative. As tinnitus was not shown in service, and the records contain no suggestion of a causal link between his tinnitus and active service, to include his conceded in-service noise exposure, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection. As the most probative evidence is against the claim, reasonable doubt does not arise, and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.