Citation Nr: 21067863 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-46 049 DATE: November 5, 2021 ORDER Service connection for a bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's current bilateral sensorineural hearing did not begin in service, become manifest to compensable degree within a year of separation from service, and is not related to noise exposure from service. 2. Resolving doubt in favor of the Veteran, her tinnitus is related to her service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus, as secondary to the service-connected PTSD, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1984 to April 1987. This appeal arises from a September 2013 rating decision, denying service connection for bilateral hearing loss and tinnitus. The Veteran testified at a Board virtual hearing in March 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. In May 2021, the Board remanded the case to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability, (2) the existence of the disease or injury in service, 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). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Service connection may also be granted for chronic disabilities, including bilateral hearing loss and tinnitus, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (a). As an alternative to the nexus requirement, service connection for this chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Bilateral hearing loss The Veteran contends that she has bilateral hearing loss and tinnitus due to loud engine noise while assigned to refueling planes on the flight line, for 8 hours a day. See Board hearing transcript; November 2011 claim. At the outset, the Board finds that the criteria for entitlement to service connection on a presumptive basis have not been met. The record does not show bilateral sensorineural hearing loss manifested to a compensable degree (10 percent) within a year following separation from service, that is, by April 1988. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). Turning to direct service connection, the Board considers whether the Veteran's claimed bilateral hearing loss meets the VA regulatory requirements. For VA purposes, there are specific criteria that must be satisfied to allow hearing loss to be service connected. Not all hearing loss is considered a disability for VA purposes. 38 C.F.R. § 3.385. Impaired hearing will be considered a disability for VA purposes 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 June 2013 VA audiological examination results show pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 45 50 LEFT 25 25 15 20 35 Speech audiometry revealed speech recognition ability of 88 percent bilaterally. The June 2013 VA audiology findings show right and left sensorineural hearing loss that met VA regulatory criteria for a current VA hearing loss disability. However, the Veteran did not meet VA hearing loss standards for either ear at the next VA examination in May 2016. At the May 2016 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 20 25 LEFT 15 10 05 15 25 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. Most recently, at the next VA examination in August 2021, the Veteran did not meet VA hearing loss standards for the right ear but did meet VA standards for hearing loss of the left ear. At the August 2021 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 25 35 LEFT 30 25 30 45 50 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 88 percent in the left ear. Based on the record the Board finds that the Veteran has established a current bilateral hearing loss disability, for VA purposes, during at least part of the pendency of the appeal, particularly at the time of the June 2013 VA audiological examination. In this case, the claim for hearing loss was filed in November 2011. The requirement that a current disability be present is satisfied when a claimant has a disability: 1) at the time a claim for VA disability compensation is filed, or 2) during the pendency of that claim, even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). As to the second requirement of in-service incurrence, the Board acknowledges that a review of the Veteran's service treatment records is unremarkable for complaint, treatment, or diagnosis of any bilateral hearing loss disability. For instance, her April 1987 separation examination is silent for any diagnoses of bilateral hearing loss, including upon audiometric testing, and the examiner found her ears were clinically normal. Audiometric testing at the April 1987 separation examination showed pure tone thresholds indicative of normal hearing. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. However, the Veteran's DD Form 214 does show military duties as an aircraft maintenance data analysis technician. See DD Form 214. The Board finds the Veteran had in-service noise exposure, which is consistent with the places, types, and circumstances of her service. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). Thus, the question in this case is whether a causal relationship or nexus exists between the Veteran's bilateral hearing loss and her active service. While accepting the Veteran's contention of military noise exposure, the probative and persuasive evidence fails to relate her in-service acoustic trauma to her current bilateral sensorineural hearing loss. In fact, the highly probative September 2021 VA examiner's opinion weighs against the Veteran's claim. The examiner expressly opined that the Veteran's bilateral hearing loss was less likely than not (less than 50 percent probability) incurred in or caused by military service. Although the examiner indicated the Veteran had military noise exposure from her military duties in aircraft maintenance, the examiner nonetheless reasoned that none of the Veteran's in-service hearing exams, including on the discharge medical exam, showed any positive shifts in hearing. The examiner also stated, "No hearing loss was reported in medical record up to 2013 and original claim. Given well-documented medical exams during service with no evidence of shift in hearing and her first claim with onset of hearing loss dated 1990s per her report which is [a] few year[s] post separation, and no other report of hearing loss [until] 2013 and the fact studies shows prolonged delay in onset of noise induces hearing loss in unlikely hearing loss is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner also referenced medical literature, the 2006 Institute of Medicine study, as evidence against etiology, citing that, "...the mechanisms and processes involved in the recovery from noise exposure suggests, however, that a prolonged delay in the onset of noise-induced hearing loss is unlikely." Given the VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, including reference to, the Board finds the VA examiner's opinion is highly probative evidence against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). The May 2021 Board remand indicated the June 2013 negative nexus opinion on hearing loss was inadequate, so the Board does not assign this opinion any probative value. It is acknowledged that a review of the Veteran's treatment records reveals a positive nexus opinion in April 2021 from her private treating audiologist, N.S., who stated, "I believe this left ear loss is at least as likely as not caused by close proximity hazardous noise exposure directed toward your left ear while serving in the military." The Board does not accord this private opinion probative value for the claim, as it lacks any supportive rationale. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Overall, the totality of the probative medical evidence weighs against the Veteran's claim. The Board has also considered the Veteran's lay statements. While the Veteran believes her bilateral hearing loss is related to her military noise exposure, she is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, the Veteran has not asserted a history of hearing loss dating back to service. Rather, she testified to first noticing hearing loss about 5 years after service. Additionally, the record does not support the establishment of service connection by means of consideration of a continuity of hearing loss symptomatology. Consequently, no additional consideration in this regard is warranted. The Board concludes the probative and persuasive evidence does not support the claim for service connection for bilateral hearing loss, and there is no doubt to be resolved. As such, the claim is denied. 2. Tinnitus The Board finds sufficient evidence to grant the tinnitus claim on a secondary basis to the service-connected posttraumatic stress disorder (PTSD). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran currently has a tinnitus disability, per diagnosis by the August 2021 examiner. The Board considers there is probative medical opinion evidence in support of the claim on a secondary theory, and no contravening evidence, including medical opinion evidence against such notion. The August 2021 VA examiner provided a positive opinion that the tinnitus is at least as likely as not (50 percent or greater probability) due to a known etiology of PTSD. Given the examiner's in-person examination and review of the medical record, and consideration of relevant medical literature, the Board finds the opinion is highly probative evidence against the claim. See Nieves-Rodriguez, 22 Vet. App. at 295. The Board concludes the evidence supports the claim for service connection for tinnitus on a secondary basis to the presently service-connected PTSD, and there is no doubt to be otherwise resolved. See 38 C.F.R. § 3.310. There is no need to further discuss the merits of the claim on a direct basis for service connection. The claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.