Citation Nr: 21066498 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-10 706 DATE: November 1, 2021 ORDER The claim for service connection for a low back disability is dismissed. The claim for service connection for bilateral hearing loss is denied. The claim for service connection for tinnitus is denied. FINDINGS OF FACT 1. At his October 2020 hearing before the undersigned Veterans Law Judge, the Veteran and his authorized representative expressed their desire to withdraw the claim for service connection for a low back disability, and the undersigned acknowledged that expressed desire to withdraw the claim. 2. Hearing loss in each ear present during the claim period did not develop in service; is not otherwise etiologically related to an in-service injury, event, or disease; and did not manifest to a compensable degree within the first post-service year. 3. Tinnitus present during the claim period did not develop in service; is not otherwise etiologically related to an in-service injury, event, or disease; and did not manifest to a compensable degree within the first post-service year. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for a low back disability are met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to January 1971 and from April 1971 to April 1973, and he was thereafter a member of the Army National Guard of North Dakota. The Department of Veterans Affairs (VA) is grateful for his service. Service Connection 1. Service connection for a low back disability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At his October 2020 hearing before the undersigned Veterans Law Judge, the parties clarified that the Veteran was withdrawing his appealed claim for service connection for a low back disability. Accordingly, the Board does not have jurisdiction to review the appeal of the claim for service connection for a low back disability, and it is dismissed. 2. Service connection for bilateral hearing loss 3. Service connection for tinnitus The Veteran contends, in effect, that his bilateral hearing loss and tinnitus developed in service or are otherwise causally related to service. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases, such as organic diseases of the nervous system (to include sensorineural hearing loss), listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as an organic disease of the nervous system including sensorineural hearing loss and tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § § 3.307, 3.309(a). While the disease need not be diagnosed within the presumption 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. The threshold for normal hearing is from 0 to 20 decibels (dB) with higher thresholds indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 hertz is 40 decibels (dB) or greater, or where the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In a signed submission in September 2015, the Veteran stated, "I first noticed my hearing loss, tinnitus [...] while I was on active duty and they have been a problem ever since." In a signed VA Form 9 in February 2018 the Veteran stated, "I first noticed my hearing loss and tinnitus while I was on active duty and active duty for training." However, at his October 2020 hearing before the undersigned, the Veteran testified that he first noticed decreased hearing after he got married, when his wife spoke and he could not hear her. (Hearing transcript, page 6.) A submitted marriage certificate documents that he married his wife in May 1976, three years after service. He also then testified that he had ringing in his ears when stationed aboard the USS Denver after he was exposed to a practice general quarters drill in which the ship fired eight-inch cannons, and that his ears hurt for two or three days afterwards. He testified that his tinnitus came back later, but he could not say when it the tinnitus came back, explaining that it was a long time ago. (Hearing transcript, pages 2, 6-7.) Thus, in his hearing testimony, the Veteran contradicted his written statements that he had hearing loss and tinnitus ever since service. In a signed notice of disagreement (NOD) submitted in July 2016, disagreeing with the denial of service connection for hearing loss and tinnitus, the Veteran stated, "The decision letter states that I have hearing loss for VA purposes but it is not service related because I worked as a welder and I operated chain saws, [sic] I am a welder and I can tell you that I am required to wear hearing protection while I am at work in the noisy environments, but I never said that I operated chain saws[.] I don't even own one so I am unsure where the audiologist got this statement from." The Veteran thus strongly implied, without explicitly stating, both that he did not use chain saws following service and that he did not tell the VA examiner that he used chain saws following service. However, a May 2017 VA report of contact documents a telephone conversation with the Veteran in which he conceded that the NOD was incorrect and that he did use chainsaws. The Veteran has thus provided multiple contradictory statements concerning both noise exposures following service and dates of onset of his hearing loss and tinnitus. In light of such contradictory statements, the Board does not find the Veteran's statements concerning his noise exposures and dates of onset of symptoms of hearing loss and tinnitus to be credible. Caluza, 7 Vet. App. at 511, 512. Service hearing loss examination findings were as follows: HERTZ 500 1000 2000 3000 4000 January 1971 RIGHT 15 5 0 0 0 LEFT 10 5 15 20 15 March 1971 RIGHT 0 0 0 - 0 LEFT 0 0 0 - 0 March 1973 RIGHT 10 5 0 0 0 LEFT 15 10 0 0 0 Upon a November 1985 Army National Guard enlistment examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 0 5 10 LEFT 10 10 5 15 20 Upon VA hearing loss examination in May 2016, on the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Average 1000 - 4000 RIGHT 20 20 25 55 50 38 LEFT 20 20 25 50 55 38 At the May 2016 examination, speech audiometry revealed speech recognition ability of 95 percent in the right ear and of 100 percent in the left ear. The examiner found the audiometric tests valid for rating purposes and found use of the word recognition scores appropriate bilaterally. The examiner diagnosed bilateral sensorineural hearing loss. The examiner also noted the Veteran's reported history of work in the Navy using a pounding rivet gun, service exposure to cannon fire aboard the USS Denver, and post-service exposure in the Reserves to small arms fire, machine guns, ribbon bridges, and boats' diesel engines. The examiner then noted the Veteran's post-service history of working as a welder and using chainsaws. Reviewing the record, the examiner found that there was no permanent threshold shift in either ear during the claim period based on review of hearing loss examinations in January 1971, March 1971, and March 1973. The examiner further observed that the Veteran's hearing was normal bilaterally in March 1973. Further, Army Reserves enlistment examination in 1985 also showed normal hearing bilaterally. The examiner also found no evidence from service of hearing loss or line-of-duty injury. Based on the absence of threshold shifts in service, normal hearing upon examinations in service and proximate to service, and post-service noise exposure, the examiner opined that it was not at least as likely as not that the Veteran's hearing loss in either ear was due to his active service. (The examiner's opinion was initially partially contradictory due to a typographical error, but this was subsequently corrected.) Also at the May 2016 examination, the Veteran provided a history of tinnitus for about 10 years. The examiner opined that it was not at least as likely as not that the Veteran's tinnitus was due to noise exposure in service. The examiner provided a rationale that onset of tinnitus after service, significant noise exposure after service, and absence of indication of tinnitus in service weighed against a link to noise exposure in service and in favor of other causes. The examiner further explained that it was at least as likely as not that the Veteran's tinnitus was a symptom associated with his hearing loss because tinnitus was a known symptom of hearing loss. In submitted statements and testimony, the Veteran emphasized noises to which he was exposed in service including as an aviation mechanic while discounting the extent of noise exposure following service including in his career as a welder. The Veteran conceded to working for 50 years as a welder, thus essentially the entire time interval following active service. Based on the non-credibility of his submitted statements and testimony, the Board does not find credible his statements, in effect, that his work as a welder involved exposure to less loud noises or less acoustic trauma than his noise exposures in service. The considerably longer time interval of his work as a welder than his period of service also indicates a greater amount of potentially acoustically harmful noise exposure following service, which the May 2016 VA examiner effectively concluded. The Veteran's wife testified at the hearing that the Veteran had some hearing loss when they first got married but that over the years it had grown worse. This testimony also ultimately does not tend to support the claim. Because they were married three years after service, this statement fails to establish onset of hearing loss during active service or within the first year following service. The Board finds the weight of competent and credible evidence of record to be consistent with and supportive of the VA examiner's opinions against hearing loss in either ear or tinnitus being causally related to service. As discussed, the Veteran's self-reported history of onset of tinnitus and hearing loss has been inconsistent and not credible, while the statement by the Veteran at the examination of tinnitus with onset approximately 10 years ago, or many years following service, as a declaration against interest, is judged to be the most credible statement among his contradictory statements of date of onset of tinnitus. Service records do not reflect a threshold shift in either ear over the Veteran's service, and the Veteran worked as a welder with exposure to excess noise for multiple decades after service and most likely used chainsaws after service (again, declarations against interest being more credible), and hence was exposed to excess noise over a considerably longer interval following service than during service. The Board does not question the sincerity of the Veteran's belief that his hearing loss and tinnitus are related to service. However, the Veteran, as a layperson, is without the expertise needed to ascertain the etiology of his hearing loss or tinnitus, where, as here, onset of each was years following service and there were present both in-service and post-service sources of noise exposure. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The Board accordingly finds the weight of the evidence against hearing loss in either ear having developed in service or being causally related to service, or being present to a compensable degree within the first post-service year. The Board accordingly also finds the weight of the evidence against tinnitus having developed in service or being causally related to service, or being present to a compensable degree within the first post-service year. Hence, service connection is not warranted for hearing loss of either ear or tinnitus on a direct or first-year-post-service presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. To arrive at these determinations, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against entitlement to the claims for service connection for bilateral hearing loss and tinnitus, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. (Continued next page) Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.