Citation Nr: 21069059 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-08 469 DATE: November 17, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's right ear hearing loss had its onset in service or manifested to a compensable degree within the applicable presumptive period, that there is continuity of symptomatology since service or that any bilateral hearing loss is otherwise etiologically related to in-service noise exposure. 2. The preponderance of the evidence is against finding that the Veteran's left ear hearing loss had its onset in service or manifested to a compensable degree within the applicable presumptive period, that there is continuity of symptomatology since service or that any bilateral hearing loss is otherwise etiologically related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 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 in the U.S. Army from June 1955 to April 1957. These matters come before the Board of Veterans' Appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded these matters to the RO for further development. More specifically, the Board directed the RO to schedule the Veteran for a new examination to determine the etiology of his disabilities, to include his lay statements about the cause of his hearing loss. The Board also directed that the Veteran's Social Security Administration (SSA) records be obtained, that the National Personnel Records Center be contacted to obtain the Veteran's missing service medical records and send the Veteran a notice letter notifying that he can submit alternative sources in place of the missing service medical records. A June 2020 SSA response indicates that the requested medical records did not exist and that further efforts to obtain them would be futile records have been associated with the record and a March 2020 letter informed the Veteran that VA was requesting his service treatment records from his service department and that he was able to furnish documents that can substitute other documents for his service treatment records. A VA etiology opinion was obtained in September 2021. In September 2021, the RO issued a Supplemental Statement of the Case again denying service connection for the Veteran's bilateral hearing loss and tinnitus. The Board therefore finds that there has been substantial compliance with its previous remands. Stegall v. West, 11 Vet. App. 268 (1998). The matter now returns to the Board for further appellate review. Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for right ear hearing loss is denied. 2. Entitlement to service connection for left ear hearing loss is denied. The Veteran contends that his bilateral hearing loss steams from cannon exposure during shooting practice during service. See September 2014 Statement. The Board notes that the Veteran has bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran's service treatment records are silent to any complaints, diagnosis or treatments for a hearing loss disability; however, the Board notes that the Veteran's complete records are not available. See March 2020 Request for Information. As such, VA has a heightened duty to assist the Veteran in developing his claims. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate medical records, which has been done to the extent possible, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board has first considered whether service connection is warranted on a presumptive basis. However, the available evidence fails to show that the Veteran manifested bilateral hearing loss to a compensable degree within one year following his release from active duty. There are no complaints reported in the evidence of record until it was referenced in a doctor's report in November 2013, which is more than 50 years after his service discharge. Therefore, presumptive service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, a November 2013 opinion by his treating physician stated that the Veteran presents medical conditions secondary to trauma suffered during military service, to include bilateral deafness. However, this opinion is deemed inadequate as it is conclusory and does not provide reasoning to support its conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Thus, this opinion is afforded little probative value. The Veteran was afforded a VA examination in June 2014. The VA audiologist opined that the Veteran's bilateral hearing loss is not as likely as not (50 percent probability or greater) caused by or a result of an event or injury in service. The examiner reasoned that the Veteran had a military occupational specialty of Medical Corpsman which had a low probability for hazardous noise exposure. The examiner explained that the Veteran was active in military service 57 years ago and that the service records were reviewed in Veterans Benefits Management System (VBMS) and there was no audio test found. The examiner noted that there are also no complains of hearing loss or services documented while in active service or after release of active service and that VA medical records are silent as to any audiological treatment/care for hearing loss until January 28, 2014. The examiner noted that at that time bilateral sensorineural hearing loss was identified that current completed VA exam shows there is bilateral mild to moderately severe hearing loss. The examiner noted that it is well established in the medical literature that exposure to high levels of noise causes either immediate hearing loss, such as in cases of noise/acoustic trauma, or progressive hearing deficits during prolonged periods of exposure during military service, but retroactive effects in hearing sensitivity are not expected so many years after exposure to military noise. The February 2019 Board decision deemed this opinion inadequate for adjudicative purposes as the examiner based her opinion on whether hearing loss was documented in the Veteran's service treatment records, despite notice of the records being destroyed in a fire. Thus, this opinion is afforded little probative value. The Veteran was afforded another VA examination in September 2021 and the examiner opined that the Veteran's hearing loss was at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The examiner reasoned that the Veteran's electronic claims file was carefully reviewed, and there was no hearing test found for the period of active duty. The examiner noted that there was no evidence of complaints of hearing loss in the Veteran's claims file for more than 50 years after military service and that the bilateral hearing loss was diagnosed in the VA evaluation in June 2014. The examiner further reasoned that medical literature indicates that exposures to high intensity noise levels, like industrial/construction noise, printing work, music, or military noise, can cause permanent or progressive hearing loss during prolonged periods of exposure and there are no retroactive hearing effects expected after years of being exposed to high intensity noise. The examiner concluded that it is highly probable that the current evaluation shows a bilateral high frequencies hearing loss that is due to presbycusis or hearing loss expected as a normal aging process or a combination of both factors, namely the aging process and noise exposure. The examiner reasoned that it is reasonable to conclude that the bilateral hearing loss is less likely than not related to the military service from June 1955 to April 1957. The medical examination report contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, supra. Therefore, the medical opinion is of great probative value. There is no contrary opinion of record. The Board notes the statements of the Veteran as to the existence and etiology of his claimed bilateral hearing loss and that the Veteran is competent to give evidence about what he experienced. The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss. Therefore, the Veteran's lay opinion could possibly be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, determining the precise etiology of the Veteran's hearing loss is not a simple question as there are conceivably multiple potential etiologies of the Veteran's hearing loss. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Furthermore, although the Veteran's service treatment records were unavailable to be reviewed in its entirety, the September 2021 VA examiner noted that neither were there any complaints of hearing loss in the Veteran's available post-treatment records until 2013 to 2014 which demonstrates that his hearing disability is more likely a result of the aging process than noise exposure. Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for service connection for bilateral hearing loss. In reaching the conclusion above, 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 3. Entitlement to service connection for tinnitus is remanded. The Veteran contends that the ringing in his ears stem from exposure to cannons during shooting practice in military service. See September 2014 Statement. A June 2014 VA examiner found that the Veteran had recurrent tinnitus and provided a negative etiology opinion. As previously mentioned, this opinion was deemed inadequate by the Board in February 2019. In the September 2021 VA examination, the examiner noted that the Veteran denied tinnitus during the examination. Therefore, no diagnosis was provided and etiology opinion was not rendered. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1956 (31st ed. 2007). Because tinnitus is "subjective," its existence is generally determined by whether 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 the Veteran reported tinnitus during the appeal period and the June 2014 found that the Veteran had recurrent tinnitus, he is considered to have a current diagnosis for purposes of the appeal. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, a remand is required to obtain an etiology opinion. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of the Veteran's tinnitus. The examiner should review the claims file and note that review in the report. All indicated tests should be conducted. The need for further in-person examination is left to the discretion of the examiner. The examiner should respond to the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus is related to the Veteran's service or to claimed noise exposure during service? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.