Citation Nr: 21072867 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-54 634 DATE: December 6, 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 most probative evidence does not reflect that bilateral hearing loss is etiologically related to in-service noise exposure or any other incident of active duty. 2. The most probative evidence does not reflect that tinnitus is etiologically related to in-service noise exposure or any other incident of active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from May 1980 to May 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the case for further development in July 2021. The case has since been returned to the Board for appellate review. Service Connection The Veteran has asserted that he has a bilateral hearing loss and tinnitus disability that is related to his in-service noise exposure. Specifically, the Veteran reported noise exposure from aircraft, weapons, machinery, and equipment. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) during active service was in aviation supply. As such, the Board concedes that the Veteran was exposed to hazardous noise during active service. Service treatment records (STRs) do not show complaints of, treatment for, or a diagnosis of a bilateral hearing loss for VA purposes or tinnitus while the Veteran was in active service. Further, as discussed below, the objective audiometric testing results from the Veteran's active service do not show that the Veteran had significant threshold shifts in his hearing acuity while in active service. Post-service medical evidence of record shows that the Veteran received treatment for his bilateral hearing loss and tinnitus disability at a private facility. However, there is no indication from the treatment notes that his bilateral hearing loss or tinnitus disabilities have been found to be related to noise exposure sustained in active service. In April 2015, VA obtained an etiological opinion for the Veteran's hearing loss and tinnitus disabilities. The examiner opined that it was less likely as not that the Veteran's bilateral hearing loss and tinnitus disabilities were caused by or a result of noise exposure while in active service. In this regard, the examiner noted that based on enlistment and separation audiograms, there was no significant in-service threshold changes, as a change of 10 decibels is not audiometrically significant and could be attributed to normal measurement error. Moreover, the examiner noted that the Veteran had mild hearing loss at 6000Hz in the left ear at enlistment, but there was no significant change at that frequency at separation. Moreover, citing an Institute of Medicine Study (IOM), the examiner stated that current knowledge of cochlear physiology does not provide sufficient scientific basis for the existence of delayed-onset hearing loss. With regard to tinnitus, the examiner noted that the STRs were silent for tinnitus complaints and there was no significant in-service threshold shift present. The examiner stated that in the absence of objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. Further, that IOM never stated that tinnitus could result from undiagnosed noise injuries. In most cases, tinnitus is accompanied by measurable hearing loss. In November 2018, the Board found that the Veteran was not afforded an opportunity to attend the above examination and remanded the claim. The Veteran was afforded a VA examination in November 2019. The examiner noted the Veteran's in-service noise exposure and noted that the onset of the Veteran's hearing loss and tinnitus was 2009. At that time, the examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation. Further, that there was no report of complaints or treatment for a hearing decrease in the STRs or at separation. Further, that the evidence was against a nexus in this case. Regarding tinnitus, the examiner stated that the Veteran's STRs do not contain complaints, treatments, or a diagnosis of tinnitus. Further, that the onset of tinnitus was reported to be 2009, long after separation from the military. Additionally, that STRs indicate no significant permanent shift in hearing thresholds greater than normal measurement variability from entrance to separation. Moreover, that there was no event, disease or injury in service or a link between a medical condition and tinnitus. In July 2021, the Board found that the November 2019 VA examination did not address whether the Veteran's delayed-onset hearing loss and tinnitus could be related to military service and remanded the claim. Subsequently, the Veteran was afforded another VA examination in September 2021. At that time, the examiner noted the Veteran's in-service noise exposure. However, she opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. In that regard, the examiner noted that the Veteran did not have a significant threshold shift in audiometric findings from his entrance examination to his separation examination. Moreover, the examiner stated that based on testing conducted at entrance and during separation, that the Veteran did not have a hearing injury while in service. Notably, the examiner stated that delayed onset hearing loss due to noise exposure was unlikely to occur. The examiner stated that in the absence of a noise injury, the association between the Veteran's bilateral hearing loss and noise exposure cannot be assumed to exist. Thus, the examiner opined that the Veteran's hearing loss was less likely as not caused by or a result of noise exposure while in service. The examiner stated that the Veteran entered service with hearing loss of the left ear at the 6000Hz level, but there had been no aggravation or progression of the Veteran's hearing loss when compared to his separation examination. Further, that the Veteran's current hearing loss was not beyond normal variability for his age. With regards to tinnitus, the examiner noted the Veteran's in-service noise exposure. However, the examiner opined that the Veteran's tinnitus was less likely than not related to military service. In so finding, the examiner stated that tinnitus is a symptom of hearing loss. Additionally, she noted that there were no significant threshold shifts noted on examination in-service. Moreover, that as the evidence shows that there has been no significant threshold shift, any hearing loss occurring following service is less likely as not caused by or a result of noise exposure. Further, the examiner explained that in the absence of objective audiometric evidence of noise injury while in service, an affirmative opinion that the veteran suffered some latent undiagnosed noise injury is utter speculation and directly contradicts the objective evidence of record. Notably, the examiner stated that the Veteran's hearing loss and tinnitus disabilities were less likely than not to have a delayed onset due to noise exposure during service. In that regard, the examiner discussed multiple studies on the subject, including the IOM study mentioned above as well as a line of research completed by Dr. Kujawa. The examiner noted that not everyone who is exposed to hazardous noise will suffer a noise injury, and that delayed onset hearing loss due to previous noise exposure is unlikely to occur. Thus, if the evidence shows that there has been no significant threshold shift beyond normal measurement variability while in service that any hearing loss occurring following service is less likely as not caused by or a result of in-service noise exposure. The Board finds that taken together, the April 2015, November 2019, and September 2021 VA examinations and opinions report are adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, there is no contrary medical opinion of record. To the extent that the April 2015, and September 2021 VA examiner noted that the Veteran had left ear sensorineural hearing loss at 6000 Hertz on his entrance examination, the Board notes that such hearing loss is not considered a disability for purposes of VA purposes, and the Veteran is presumed to have entered service in sound condition. Cf. 38 C.F.R. § 3.385; see also 38 U.S.C. § 1111; Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Board notes that the April 2015 and September 2021 VA examiners specifically noted that there was no aggravation or progression of any hearing loss disability when comparing the Veteran's entrance examination to his separation examination. Quite simply, the examiners opined that the Veteran's hearing acuity at entrance compared to his hearing acuity at separation is inconsistent with someone who would have suffered acoustic trauma induced hearing loss because there were no significant threshold shifts beyond normal measurement variability during service. While the Veteran is competent to report observable symptoms of decreased hearing acuity and tinnitus, he is not competent to provide an opinion linking his diagnosed bilateral hearing loss or tinnitus to active service, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Further, there is no indication from the record that bilateral hearing loss or a tinnitus disability was manifest to a compensable degree within a year of the Veteran's separation from active service. In fact, the Veteran reported that his bilateral hearing loss and tinnitus began in 2009. As such, presumptive service connection for a chronic disability is not warranted in this case. 38 C.F.R. § 3.309(a) (2020). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral hearing loss and tinnitus is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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.