Citation Nr: 21069796 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-42 091 DATE: November 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. The Veteran's tinnitus did not manifest during service, or within one year of separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1986 to April 1989. These matters come before the Board of Veterans' Appeals from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal has been before the Board several times, most recently in August 2021, when the claims were remanded for additional development. A September 2021 supplemental statement of the case was issued, and the case is once again before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus Issues 1-2: The Veteran asserts that he developed hearing loss and tinnitus as a result of noise exposure in service while serving as a generator mechanic and radio operator. The Board has reviewed all the relevant evidence of record and finds that the preponderance of the evidence weighs against the Veteran's claims. The Board concedes that the first Shedden element of a current disability has been met, as both hearing loss and tinnitus have been diagnosed. See 38 C.F.R. § 3.385; September 2020 VA examination. The Board concedes that the Veteran had in-service noise exposure, meeting the second Shedden element. Therefore, the remaining pertinent element to be discussed is that of a nexus between the Veteran's service and his current tinnitus and hearing loss. The Board has reviewed the Veteran's service treatment records (STRs). The STRs contain no complaints of hearing loss or tinnitus. He declined a separation examination upon his separation from active duty. See April 1989 STRs. However, upon reenlistment for his Reserve service, a Report of Medical Examination indicated normal hearing, and the Veteran specifically denied ear problems and hearing loss on his Report of Medical History. See October 1994 STRs. Post-service records first reflect hearing loss and tinnitus on his February 2015 VA examination. While his VA treatment records reflect an August 2007 complaint of decreased hearing acuity in his left ear, this was assessed as otitis media rather than hearing loss. See August 2007 STRs. The Veteran submitted a September 2014 letter from a VA staff audiologist that stated it was his opinion that "relationships exist between [the Veteran's] current hearing loss, tinnitus and his military service" due to his noise exposure during service. See September 2014 letter. The letter did not state what evidence had been reviewed in making this determination, including what audiometry tests had been conducted. Therefore, little probative value is accorded to this letter. The Veteran was initially provided the aforementioned February 2015 VA examination and opinions. The Board, in its February 2020 remand, found that an addendum medical opinion was necessary as there were inadequacies in the February 2015 opinions. As such, little probative value is accorded to the February 2015 VA etiological opinions. Unfortunately, the September 2020 VA addendum opinion obtained as a result of the February 2020 remand was also inadequate, as determined by the November 2020 Board remand. Accordingly, little probative value is accorded to the September 2020 VA etiological opinions. September 2021 VA addendum opinions were obtained. The VA examiner, after considering the evidence of record, opined that it was less likely than not that hearing loss and tinnitus were related to military noise exposure. Regarding hearing loss, the examiner noted the Veteran's audiograms during service and his Reserve reenlistment audiogram from five years following his release from active duty, did not show permanent auditory damage or hearing loss on active duty or five years following separation. The examiner noted the Veteran specifically denied hearing loss five years after active service, on his Report of Medical History for Reserve reenlistment. The examiner further noted the Veteran reported significant civilian occupational and recreational noise exposure during his September 2020 VA examination. The examiner stated that for current hearing loss to relate to military noise exposure, there must be evidence of auditory damage via behavioral auditory thresholds, and there was no evidence of such here. Regarding tinnitus, the examiner reiterated that there was no evidence of hearing loss while on active duty or five years following his separation from active duty. The examiner noted the first evidence of hearing loss was the February 2015 VA examination. The examiner noted that there was no significant permanent shift in hearing thresholds or evidence of permanent auditory damage on active duty or five years following separation. On his Report of Medical History for his Reserve reenlistment, the Veteran specifically denied ear trouble. The examiner stated that where there are no changes in hearing from noise exposure during a specific period, it is unlikely that tinnitus would be caused by that same noise exposure. After reviewing all the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus. Initially, the Board finds that presumptive service connection is not warranted as there is no evidence to show that the Veteran was diagnosed or had onset of bilateral hearing loss or tinnitus either during service or within the first year after separation from service. The Board acknowledges that the Veteran reported at the September 2020 VA examination that his hearing loss and tinnitus began during service. However, the Board finds the lack of evidence of complaints of hearing loss or tinnitus during service and for many years after more probative than the Veteran's current assertions. The only adequate medical opinion to address the medical relationship, if any, between the Veteran's bilateral hearing loss and tinnitus and active service weighs against the claim. The September 2021 VA addendum opinions considered all the evidence of record, to include the Veteran's assertion that his hearing loss and tinnitus were caused by noise exposure during active service, and opined that the Veteran's bilateral hearing loss and tinnitus were not related to service. The Board finds that these opinions constitute probative evidence on the medical nexus question, based on a review of the Veteran's documented medical history, assertions, and physical examination. The opinions provided clear rationale based on an accurate discussion of the evidence of record, to include consideration of in-service and post-service noise exposure, as well as the Veteran's lay opinions regarding the etiology of his hearing loss and tinnitus. Prejean v. West, 13 Vet. App. 444 (2000). At this time, the Board acknowledges the representative's arguments presented in the November 2021 Written Brief Presentation, indicating that the examiner's responses appeared to be for litigation purposes and the appellant was seeking financial gain. In this regard, the Board has reviewed the examiner's opinions and finds that they were based on an objective, nonbiased review of the facts and articles identified, and that all discussions provided and conclusions reached reflect the same. As indicated, the September 2021 opinions are of high probative value. Additionally, neither the Veteran nor his representative has presented or identified any contrary probative medical opinion that supports the claims for service connection for bilateral hearing loss or tinnitus. The Board also notes that the Veteran can attest to that which he is competent to observe, such as symptoms denoting loss of hearing and tinnitus, but he is not competent to provide a medical diagnosis of hearing loss or to relate any symptoms of hearing loss to noise exposure in service. The Board acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). However, competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). While the Veteran attributes his bilateral hearing loss and tinnitus to service, it does not necessarily follow that there is a relationship between current bilateral hearing loss or tinnitus and service. The Board finds that the contemporaneous in-service evidence of record, as well as audiological testing considered with the September 2021 VA addendum opinions, is of more probative and persuasive value than the Veteran's assertions. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the preponderance of the evidence weighs against a finding that bilateral hearing loss and tinnitus are related to active service. As the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and tinnitus, the claims must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dean, 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.