Citation Nr: 21069746 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 12-30 668A DATE: November 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection, to include on a secondary basis, for bilateral tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not originate in service or until years thereafter and is not otherwise etiologically related to service. 2. The Veteran's bilateral tinnitus disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not proximately due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection, to include on a secondary basis, for bilateral tinnitus have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to April 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in November 2021 for additional development. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection, to include on a secondary basis, for tinnitus Factual Background A March 1970 report of medical examination indicated that evaluation of the Veteran's ears was normal. A contemporaneous report of medical history indicated that the Veteran did not have running ears, hearing loss, nor ear, nose, or throat trouble. An April 1971 report of medical history again indicated that the Veteran did not have running ears, hearing loss, or ear, nose, or throat trouble. A February 1976 report of medical examination indicated that evaluation of the Veteran's ears was normal. Audiogram results revealed that decibel loss in the right ear was, respectively, 10, 5, 5, 5, and 5. Decibel loss in the left ear was, respectively, 5, 0, 10, 10, and 10. An October 1979 report of medical examination again indicated that evaluation of the Veteran's ears was normal. Audiogram results revealed that decibel loss in the right ear was, respectively, 0, 0, 0, 0, and 0. Decibel loss in the left ear was, respectively, 5, 0, 5, 5, and 0. A contemporaneous report of medical history noted that the Veteran did not have ear, nose, or throat trouble nor hearing loss. A September 1984 report of medical examination again indicated that evaluation of the Veteran's ears was normal. Audiogram results revealed that decibel loss in the right ear was, respectively, 5, 5, 5, 10, and 5. Decibel loss in the left ear was, respectively, 5, 5, 15, 15, 5. A December 1990 service treatment record noted that the Veteran had loss of hearing for one day due to impacted cerumen. A December 1990 report of medical examination indicated that evaluation of the Veteran's ears was normal. Audiogram results revealed that decibel loss in the right ear was, respectively, 10, 5, 10, 10, and 0. Decibel loss in the left ear was, respectively, 5, 5, 25, 10, and 5. A December 1990 report of medical history indicated that the Veteran did not have ear, nose or throat trouble nor hearing loss. June 2003, September 2003, and December 2003 VA treatment records all note that the Veteran did not have tinnitus. A July 2004 VA treatment record notes that the Veteran did not have hearing loss or tinnitus. The Veteran submitted a statement in support of his claim in December 2009 asserting that he had bilateral tinnitus and hearing loss. The Veteran stated that he had experienced ringing noise for 4 to 5 months. In support of service connection, the Veteran explained that he was exposed to high noise levels as a Missile Combat Crewmember with noise exposure from a generator, air conditioner, and communications and missile monitoring status display equipment. A December 2009 private treatment record notes that the Veteran had hearing loss and ear pressure. He also responded that he was bothered by ringing in his ears. Another March 2010 private treatment record noted that the Veteran complained of gradual onset of bilateral hearing loss that began about 6 months prior. The record states, "[h]is symptoms are caused by no known event." The Veteran also confirmed having tinnitus. The Veteran was afforded a VA examination in June 2010. The June 2010 VA examiner considered the Veteran's March 1970, April 1971, July 1973, September 1984, November 1988, and December 1990 in-service audiograms. The VA examiner considered the Veteran's 20 years of military service including serving as a missile operation launch officer. The Veteran explained that he had in-service noise exposure from motors, generators, computers, alter bells, and whistles. The Veteran denied that being provided hearing protection during service. The Veteran denied occupational or recreational noise exposure. Audiogram results revealed that decibel loss in the right ear was, respectively, 20, 20, 25, 30, and 30 with an average decibel loss of 26.25 decibels for 500 through 4000 Hz. Decibel loss in the left ear was, respectively, 20,15, 35, 30, and 35 with an average decibel loss of 28.75 decibels for 500 through 4000 Hz. Speech discrimination scores using the Maryland CNC word list were 94 percent bilaterally. With regard to tinnitus, the Veteran claimed he had constant tinnitus that began in August 2009 or September 2009. The VA examiner also noted that acoustic trauma had been conceded. The VA examiner determined that the Veteran's hearing loss and tinnitus were less likely than not (less than 50/50 probability) caused by or a result of his military noise exposure. The VA examiner explained that the Veteran's hearing was well within normal limits at the time of separation, and he reported tinnitus only began within the past year. There was no medical to support a delayed onset noise-induced hearing loss and/or tinnitus. The Veteran submitted an opinion from a private provider in July 2011. The private provider noted that the Veteran reported noticing hearing loss while in the military where he was exposed to loud sounds. In addition, the Veteran had been experiencing tinnitus for the past year and a half. With regard to his tinnitus, the Veteran reported that he had been suffering from it for 1 to 2 years. No etiology opinion was provided. The Veteran stated on his November 2012 VA Form 9 that this hearing loss and tinnitus stemmed from his exposure to noise trauma during his tour of duty in missile operations for more than five years of his military career. He stated, "I never performed any other work-related functions that would cause hearing loss during my entire working life." The Veteran further asserted that his tinnitus was present at the time of his retirement physical and gradually increased to an intolerable level. The Veteran was afforded an in-person VA examination for his hearing loss and tinnitus in January 2017. Audiogram results revealed that decibel loss in the right ear was, respectively, 25, 20, 30, 35, and 40 with an average decibel loss of 31 decibels at 1000 to 4000 Hz. Decibel loss in the left ear was, respectively, 20, 15, 40, 40, and 45 with an average decibel loss of 35 decibels at 1000 to 4000 Hz. Test results were valid for rating purposes. The Veteran's word recognition score using the Maryland CNC word list was 96 percent for the right ear and 100 percent for the left ear. Use of word recognition scores were appropriate for the Veteran. The Veteran was diagnosed with sensorineural hearing loss bilaterally. The VA examiner determined that there was a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for both ears. However, the VA examiner determined neither the Veteran's right or left ear 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 VA examiner explained that the Veteran's hearing was normal at discharge from active-duty service with no significant threshold shifts. The VA examiner also cited to an Institute of Medicine Report for the proposition that noise-induced hearing loss occurred immediately and that there was no scientific support for delayed onset noise-induced hearing loss weeks, months, or years after the exposure event. Given the Veteran's hearing was within normal limits at the time of separation, his current left ear hearing loss was less likely than not caused by or a result of acoustic trauma sustained during service. With regard to the Veteran's tinnitus, the Veteran reported recurrent tinnitus consisting of constant ringing in both ears beginning around 1993. The VA examiner noted that the Veteran had a diagnosis of clinical hearing loss that his tinnitus was a symptom associated with hearing loss since tinnitus was a known symptom associated with hearing loss. Therefore, the VA examiner determined it was less likely than not (less than 50 percent probability) that the Veteran's tinnitus was caused by or a result of military noise exposure. The VA examiner also emphasized that the Veteran was discharged from active-duty service in 1991 but that he reported that his tinnitus started around 1993. There was also no evidence of tinnitus complaints in the Veteran's medical records. The VA examiner then cited to an Institute of Medicine study for the proposition that delayed onset tinnitus due to noise exposure was possible but could not be confirmed or rejected based on the current understanding of tinnitus. The Veteran was afforded another in-person VA examination for his claimed hearing loss and tinnitus in April 2019. The VA examiner acknowledged the Veteran's February 1976, October 1979, September 1984, and December 1990 in-service audiograms which all demonstrated hearing within normal limits bilaterally. The VA examiner also noted the Veteran's December 1990 report of hearing loss and subsequent diagnosis of impacted cerumen (excessive ear wax) which when removed resolved his hearing loss. The Veteran denied post-service occupational or recreational noise exposure, ear surgery, ear infections, tympanic membrane perforations, dizziness, head injury, ototoxic medication use, or family history of hearing loss. The VA examiner also cited to post-service audiological treatment and examinations in June 2010, January 2017, July 2017, and August 2017. The VA examiner noted on current examination the Veteran demonstrated mild to moderately severe high frequency sensorineural hearing loss, bilaterally, with excellent word recognition. Results were consistent with previous results. Audiogram results revealed that decibel loss in the right ear was, respectively, 2520, 15, 35, 35, and 45 with an average decibel loss of 33 decibels at 1000 to 4000 Hz. Decibel loss in the left ear was, respectively 20, 15, 40, 40, and 45 with an average decibel loss of 35 decibels at 1000 to 4000 Hz. Maryland CNC word list were 96 percent bilaterally and use of the word discrimination score was deemed appropriate for the Veteran. The Veteran was diagnosed with sensorineural hearing loss bilaterally. The VA examiner determined that there was a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for both ears. The VA examiner determined that the Veteran's bilateral hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The VA examiner explained that the Veteran demonstrated hearing within normal limits, bilaterally, throughout his military career, including at exit from the military. Therefore, it was less likely than not that his current bilateral hearing loss was the result of his military noise exposure. With regard to tinnitus, the Veteran reported bilateral constant squealing tinnitus that he claimed to notice since the military. The VA examiner determined that the Veteran's tinnitus was at least as likely as not (50 percent probability or greater) a symptom associated with hearing loss, as tinnitus was known to be a symptom associated with hearing loss. The Veteran's tinnitus was also less likely than not (less than 50 percent probability) caused by or a result of the Veteran's military noise exposure. The VA examiner explained that a June 2010 VA examination, the Veteran reported that his tinnitus began within a year of that examination. At a January 2017 VA examination, the Veteran reported that his tinnitus began in 1993. And, during the current examination, the Veteran reported that his tinnitus began during military service. With such conflicting reports regarding when his tinnitus began, and because he entered and exited the military with hearing within normal limits, bilaterally, it appeared to be less likely than not that the Veteran's bilateral tinnitus was the result of his military noise exposure. A March 2020 VA treatment record notes that the Veteran did not have tinnitus or hearing loss. An addendum VA opinion was obtained in September 2020. The September 2020 addendum VA opinion noted that February 1976, October 1979, September 1984, and December 1990 audiograms contained in the service treatment records demonstrated hearing within normal limits, bilaterally. The VA examiner did acknowledge that in December 1990 the Veteran complained of hearing loss and was diagnosed with impacted cerumen (excessive ear wax). The cerumen was removed, and his hearing loss resolved. The VA examiner then cited to post-service audiological records and examinations. The VA examiner determined that the Veteran's bilateral hearing loss was less likely than not the result of military noise exposure. The VA examiner explained that the Veteran demonstrated normal hearing limits, bilaterally, through his military career, including at separation from active-duty service. The VA examiner also cited to an Institute of Medicine Report on noise exposure in the military which concluded that noise-induced hearing loss occurred immediately and that there was no scientific support for delayed onset noise-induced hearing loss weeks, months, or years after the exposure event. The Veteran submitted another statement in support of his claim in October 2020 in which he alleged that tinnitus onset could be delayed and cited to a March 2020 Veterans Benefits Administration training letter. An addendum VA opinion was obtained in April 2021. The VA examiner acknowledged the Veteran's audiogram results from March 1970, April 1971, July 1973, February 1976, October 1979, September 1984, December 1990, and July 2011. The VA examiner noted that there were no significant threshold shifts in either ear when comparing his audiograms. The VA examiner also acknowledged that the Veteran's military occupational specialty had a probability for military noise exposure. The VA examiner also noted that the Veteran's service treatment records were silent for tinnitus. The VA examiner noted that tinnitus was denied during June 2003, September 2003, December 2003, and July 2004 medical examinations. The VA examiner also noted that the Veteran reported during a June 2010 VA examination that his tinnitus had started within a year of that examination. In addition, during a July 2011 VA audiology appointment, the Veteran reported that he had hearing loss since active-duty service but had been suffering tinnitus for only 1 to 2 years. The VA examiner acknowledged that subsequently in January 2017 and April 2019 the Veteran reported that his tinnitus began during active-duty service. The VA examiner determined that the Veteran's tinnitus was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the history provided by the Veteran was at odds with the evidence of record. The VA examiner afforded greater weight to the evidence of record than to his lay statements made during the VA examination. Analysis a. Entitlement to service connection for bilateral hearing loss The Board finds that entitlement to service connection for bilateral hearing loss is not warranted. The Veteran has a current diagnosis of bilateral hearing loss. In addition, the Board finds that exposure to acoustic trauma was likely during the Veteran's 20-year military career, especially in his role in missile operations. The question is whether a nexus exist between the Veteran's military service and his current bilateral hearing loss. Notably, the Veteran only had one complaint of hearing loss during service which was documented in December 1990; however, the December 1990 service treatment record clearly notes that the cause of the Veteran's hearing loss was impacted cerumen and that upon removal of the cerumen his hearing improved. Subsequently, the Veteran denied hearing loss in July 2004. See July 2004 VA treatment record. The Veteran's December 2009 statement and the December 2009 private treatment record provided the first lay and medical evidence, respectively, that the Veteran had hearing loss. With regard to the years-long evidentiary gap in this case between the December 1990 in-service report of hearing loss and the earliest manifestations of a hearing loss post-service in December 2009, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board emphasizes that no private medical records provide a positive nexus opinion. The December 2009 private treatment record indicated no known event caused the Veteran's hearing loss which began 6 months prior. Moreover, June 2010, January 2017, April 2019, and September 2020 VA examiners' reports unanimously found against a nexus between the Veteran's hearing loss and his active-duty service. The only evidence in support of the Veteran's claim are his own lay statements. The Board acknowledges that the Veteran is competent to report when he began experiencing symptoms of hearing loss; however, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his symptoms. As such, his lay assertions regarding a diagnosis and causation of his bilateral hearing loss are of no probative value. Further, even if his opinion regarding the etiology of a current diagnosis of hearing loss was afforded some probative value, it is far outweighed by the opinions provided by the VA examiners who have greater training and expertise than the Veteran in diagnosing and assessing hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran's bilateral hearing loss and his active service. The Board notes that some of the VA medical opinions cited to a study for the proposition that hearing loss is not a delayed phenomenon. The Board points out, however, that in each instance, the examiner's reference to the study was ancillary to his main rationale, and that the examiner's rationales were persuasive on their own, outside of the reference to the study. The Board finds that the reference to the study does not undermine the otherwise valid rationales given by the examiners. The Board finds that the preponderance of the evidence is against the claim. Entitlement to service connection for bilateral hearing loss is denied. b. Entitlement to service connection, to include on a secondary basis, for bilateral tinnitus The Board finds that entitlement to service connection for bilateral tinnitus is not warranted. The Veteran has a current diagnosis of bilateral tinnitus. In addition, the Board finds that exposure to acoustic trauma was likely during the Veteran's 20-year military career, especially in his role in missile operations. The question is whether a nexus exist between the Veteran's military service and his current bilateral tinnitus or between his tinnitus and any other service-connected disability. At the outset, the Board notes that the January 2017 and April 2019 VA examiners determined that the Veteran's tinnitus was a symptom of his hearing loss. Above, the Board denied entitlement to service connection for bilateral hearing loss. Therefore, service-connection for tinnitus on a secondary basis to this condition cannot be established. Accordingly, entitlement to service connection on a secondary basis is not for application. Turning to direct service connection, the Board finds that the Veteran's bilateral tinnitus did not begin until approximately 2009. The Board acknowledges the Veteran's contention that his tinnitus being during active-duty service but finds that this contention lacks credibility. To the contrary, the December 2009 statement in support of his claim, December 2009 private treatment record, June 2010 VA examiner's report, and July 2011 private treatment record all note the Veteran's reports of tinnitus beginning in approximately 2009. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Accordingly, with regard to the years-long evidentiary gap in this case between the Veteran's April 1991 separation from active duty service and the earliest manifestations of tinnitus in 2009, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the Board acknowledges that the Veteran is competent to report when he began experiencing tinnitus; however, as a lay person lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his symptoms. As such, his lay assertions regarding a causation of his bilateral tinnitus are of no probative value. Further, even if his opinion regarding the etiology of a current diagnosis of tinnitus was afforded some probative value, it is far outweighed by the opinions provided by the VA examiners who have greater training and expertise than the Veteran in diagnosing and assessing tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran's tinnitus and his active service. Instead, the Board affords greater probative value to the June 2010, January 2017, April 2019, and April 2021 VA examiners' reports which are all against the Veteran's claim for entitlement to service connection for tinnitus. The Board finds that the preponderance of the evidence is against the claim. Entitlement to service connection for bilateral tinnitus is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.