Citation Nr: 21069220 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-60 189 DATE: November 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The competent evidence does not reflect a diagnosis of bilateral hearing loss as defined by VA regulations. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a); 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to December 1980. In July 2019, the Veteran presented sworn testimony during a Travel Board hearing in Houston, Texas, before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In December 2019, February 2021, and July 2021, this appeal was remanded for further development. Service Connection 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; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service 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). Bilateral Hearing Loss Here, the Veteran contends that he developed bilateral hearing loss and tinnitus due to his military occupational specialty ( MOS ) as a rifleman in the infantry. 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 (Hz) 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. For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic diseases such as sensorineural hearing loss are shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the evidence of record does not show audiometric findings that meet the criteria for bilateral hearing loss under VA regulations. Thus, the requirement for a current disability has not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303 (a), (d). At the outset, the Veteran's enlistment report dated September 9, 1976, and separation report, dated October 1, 1980, showed normal hearing thresholds. The Veteran's service treatment records are silent for any complaints related to hearing loss during service. The Board notes that in November 2015, January 2020, March 2021 VA examination reports for hearing loss, the VA examiners note that pure-tone hearing thresholds and speech recognition performance could not be accurately tested. In January 2019 and most recently in August 2021 VA examination reports for hearing loss, VA examiners note pure-tone threshold and speech recognition results that reveal normal hearing bilaterally. Specifically, none of the auditory thresholds at any of the frequencies measured at 40 decibels or greater, there was not at least three frequencies at 26 decibels or greater, and the Maryland CNC Test scores were not less than 94 percent. Consequently, the Veteran's audiometric findings do not meet the criteria for impaired hearing under VA regulations. 38 C.F.R. § 3.385. The Board acknowledges that the September 2019 private examiner reports that pure-tone thresholds reflect moderate hearing loss in each ear. However, the private examiner noted that the pure-tone thresholds were not in agreement with speech testing provided by the Maryland CNC word list. Here, the Veteran's score on the Maryland CNC word lists were "excellent" at 96 percent in the right ear and 100 percent in the left ear. The examiner noted that based on the Veteran's pure-tone thresholds, the Maryland CNC word list score would be at "0" for each ear. Therefore, the examiner opined that an opinion for hearing loss could not be given at this time due to inconsistencies of the inter-test agreement and further testing was advised. As such, because the examiner ultimately determined an opinion as to whether the Veteran has hearing loss could not be provided due to inconsistencies of the inter-test agreement and further testing is advised, the Board finds that the September 2019 private examiner opinion is inadequate to support a finding of a diagnosis of hearing loss under VA regulations. The Board has reviewed the May 2020 private medical opinion, in which the examiner noted a diagnosis of bilateral hearing loss. However, based on VA regulations, the diagnosis of bilateral hearing loss is based on a mechanical formula based on pure-tone thresholds and/or Maryland CNC Test scores. Unfortunately, the records provided by the May 2020 private medical examiner (Dr. D.W.) do not include any audiological findings or audiograms. Importantly, Dr. D.W. does not provide any medical evidence supporting his bilateral hearing loss diagnosis. For example, Dr. D.W. does not indicate that he performed an audiogram, nor does he reference any prior audiometric results that reflect pure-tone thresholds and/or Maryland CNC Test scores that would support a diagnosis of hearing loss. As such, the Board finds that the examiner's diagnosis of bilateral hearing loss, without audiometric findings, does not satisfy the criteria for hearing loss based on VA regulations. Additionally, the Board has considered the Veteran's lay statements in regard to the current severity of his hearing loss. During the course of this appeal, the Veteran has chronicled the difficulties that he has had with his hearing loss disability throughout the normal conditions of his life and activities of daily living. Upon consideration of the Veteran's lay statements as to the Veteran's subjective hearing loss, the Board finds that his statements are outweighed by the objective audiological findings. The assignment of disability ratings for hearing impairment is derived from a mechanical formula. Thus, while laypersons are competent to report general symptoms such as hearing loss, the specific audiological findings from the January 2019 and August 2021 VA audiological examinations are more probative of the severity of the Veteran's hearing loss disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). Furthermore, the Board acknowledges that during the Board hearing, the Veteran also attributed his hearing loss to a possible "hole" in his eardrum. He testified that Dr. D.W. diagnosed him with a hole in his left eardrum. The Board notes that upon review of all the records supplied by Dr. D.W., there is no evidence of a hole in the eardrum. In fact, Dr. D.W. notes that the Veteran "alleges that he was exposed to acoustic trauma" during service. However, Dr. D.W. does not reference any actual medical evidence of acoustic trauma, nor does he make a finding of acoustic trauma based on medical evidence of ear trauma. In fact, evidence of record is negative for any acoustic trauma (injury). The Court has long held that "[e]vidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute' competent medical evidence.'"). LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Given such, the Board finds that the evidence of record does not support a finding that hearing loss is due to a "hole" in the Veteran's eardrum. Consequently, the Veteran's unsubstantiated statement that he has a hole in his eardrum, does not establish hearing loss per VA regulations. Considering the above, the Board finds that the probative evidence of record does not demonstrate that the Veteran has bilateral hearing loss, and it finds that the Veteran does not have a current disability for VA purposes. In the absence of evidence of a current hearing disability that meets VA standards, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223.225 (1992); 38 C.F.R. § 3.385 (2008) (for VA purposes, "impaired hearing will be considered to be a disability" only when hearing loss examination results reach certain auditory thresholds). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). The evidence must show that the Veteran currently has the disability for which benefits are being claimed. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable, and his claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Unfortunately, for the reasons discussed below, the Board finds another remand is warranted prior to adjudicating the Veteran's claim for tinnitus. Tinnitus The Veteran seeks service connection for tinnitus, which he relates to his in- service noise exposure. As discussed above, the Veteran's MOS was as a rifleman. While the evidence reflects the Veteran current has a diagnosis of tinnitus, and that the Veteran's MOS as rifleman reflects a high probability of noise exposure, the Board finds that an addendum opinion is required to ascertain whether the Veteran's tinnitus is related to his service. The Board acknowledges that the Veteran has submitted two private opinions that provide a positive nexus opinion between the Veteran's tinnitus and his service. Here, in a September 2019 private medical opinion, the examiner opined that the Veteran's tinnitus is related to his service. The basis of this opinion was that the onset of tinnitus was during service. However, the Board notes that the record is unclear when the Veteran's tinnitus began due to the Veteran's varying statements. In his initial November 2015 VA examination report, the Veteran reported that he was not sure how long he has had tinnitus. In his January 2019 VA examination report, the Veteran reported that his tinnitus has been going for over 10 years. In his January 2020 VA examination report, the Veteran reported that the onset of his tinnitus was post separation from service. And most recently, in his August 2021 VA examination report, the Veteran reported the onset of tinnitus was "10-15 years ago." Whereas, in this September 2019 private medical opinion and during the July 2019 Board hearing, the Veteran noted that his tinnitus began in service. Consequently, while the Board does not doubt the sincerity of the Veteran's current belief that his symptoms of tinnitus have been present since his years in service, the evidence contains some inconsistencies that diminish the reliability of the Veteran's current recollections. Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports the onset of his tinnitus. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)." Given such, the Board finds that the evidence does not support an onset of tinnitus during service. Therefore, given that the September 2019 private examiner's opinion is based on the Veteran's onset of tinnitus being in service, and the evidence of record does not support such a finding, the Board finds that the September 2019 private medical opinion is not supported by an adequate rationale. Any opinion expressed by the examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (indicating a medical opinion based on incorrect factual premise is not probative. The Veteran also submitted a May 2020 private medical opinion. Dr. D.W. opined that the Veteran's tinnitus is directly related to his service experience due to his constant proximity to excessive engine equipment and aircraft engine noise during service. In providing for a positive nexus opinion, the examiner provided a single conclusory sentence, without a rationale as to the basis of that opinion. As any opinion, to be adequate, it "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Any opinion expressed by the examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, D.W. did not provide a rationale as to the basis of his opinion. As such, because Dr. D.W. did not provide a rationale as to the basis of his opinion, the Board finds that this opinion lacks probative value. Lastly, the Board notes that VA examinations of record, while providing that the Veteran's tinnitus is unrelated to his service, cite or reference the 2005 IOM article entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus (IOM report). The VA examiners cited to the IOM report for the proposition that the Veteran's delayed onset of tinnitus many years after his separation from service indicates that the Veteran's tinnitus is unlikely related to service. The Board notes that, in McCray v. Wilkie, 31 Vet. App. 243 Vet. App. (2019), the United States Court of Appeals for Veterans Claims (Court) found that the 2005 IOM study contained contradictory findings. McCray highlighted that the study found: "based on current knowledge of cochlear physiology there was no significant scientific basis for the existence of delayed-onset hearing loss." Id. at 256. However, as McCray further instructs, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." Id. The Court held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Citing to D'Aries, 22 Vet. App. at 107 (the Board must explain its assessment of medical evidence in a manner adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in the Court); see also Nieves-Rodriguez, 22 Vet. App. at 301; Stefl, 21 Vet. App. at 124. If the Board requires assistance in understanding or interpreting the underlying medical text evidence, it may seek clarification from the medical expert who wrote the opinion or from another source. See Savage v. Shinseki, 24 Vet. App. 259, 273 (2011) (remanding for the Board to either seek clarification of audiologic examination reports or explain why such clarification is not necessary); Daves, 21 Vet. App. at 51-52. Given that the August 2021 VA examiner referenced the IOM report with respect to the Veteran's claim for tinnitus, as well as the other VA examiners, the Board finds that an addendum opinion is warranted that, in which the examiner addresses the apparent qualifiers or contradictions of the IOM report, to allow the Board to assess the appropriate probative value of the VA medical opinion rendered. The matters are REMANDED for the following action: 1. Request an addendum opinion from the August 2021 VA examiner, if unavailable request an addendum opinion from a qualified VA audiologist, to determine the etiology of the Veteran's tinnitus. After reviewing the entire record, the examiner should provide an opinion responding to the following: Whether the Veteran's tinnitus is at least as likely as not (probability of 50 percent or greater) incurred in or aggravated by service, to include as due to the Veteran's in-service noise exposure as a rifleman. If the examiner relies of the 2005 IOM article entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus (IOM report), please make sure to clarify the following: The IOM report stated that "based on current knowledge of cochlear physiology there was no significant scientific basis for the existence of delayed-onset hearing loss.". However, IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." Id. Therefore, does this medical literature stand for a position that delayed onset tinnitus is unlikely, without sufficient studies performed in this area? Please explain. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.