Citation Nr: 21073846 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 12-24 005A DATE: December 10, 2021 ORDER Service connection for bilateral hearing loss, to include secondary to schizophrenia and medication to treat schizophrenia, is denied. Service connection for tinnitus, to include secondary to schizophrenia and medication to treat schizophrenia, is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding of service connection for bilateral hearing loss, to include secondary to schizophrenia and medication to treat schizophrenia. 2. The preponderance of the evidence is against a finding of service connection for tinnitus, to include secondary to schizophrenia and medication to treat schizophrenia. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss, to include secondary to schizophrenia and medication to treat schizophrenia, have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus, to include secondary to schizophrenia and medication to treat schizophrenia, have not been met. 38 U.S.C. §§ 1110, 1154, 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 from February 1978 to January 1979. This matter comes to the Board of Veterans' Appeals (Board) from a May 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Board notes that hearing loss was previously denied in a final July 2009 Board decision, but subsequently reopened in a December 2014 Board decision where, along with tinnitus, the merits were remanded for further development noting the Veteran had asserted the theory that his hearing loss and tinnitus were claimed as secondary to schizophrenia and while schizophrenia had not been service-connected, the issue was still pending. To that point, while on remand, the Veteran was awarded service connection for schizophrenia in an April 2016 rating decision. Thereafter, the hearing loss and tinnitus claims were denied service connection by the Board in April 2018, then appealed to the Court of Appeals for Veteran's Claims ("the Court"). A January 2019 Court Order granted a December 2018 Joint Motion for Remand (JMR) vacating and remanding the Board's April 2018 decision for further proceedings consistent with the JMR. (As an aside, the April 2018 Board decision, December 2018 JMR, and January 2019 Court Order also pertained to a special monthly compensation (SMC) issue, which is no longer on appeal here as the issue was again denied in a subsequent October 2020 Board decision). Thereafter, in April 2019 and October 2020, the Board remanded the hearing loss and tinnitus issues to ensure compliance with the December 2018 JMR and that development was complete sufficient for adjudication, to include affording the Veteran with an adequate VA examination. The Board finds substantial compliance of all requested development has been complete. See Stegall v. West, 11 Vet. App. 268 (1998). The Board further notes that in June 2021 the Veteran requested a videoconference hearing before the Board, but he subsequently withdrew his request in writing and therefore the Board may proceed here. 38 C.F.R. § 20.704(e). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran contends that his exposure to in-service noise as an inventory clerk caused bilateral hearing loss. He further claims that even if his bilateral hearing loss and tinnitus are not a direct result of his exposure to noise while on active duty, his service-connected schizophrenia, or the medication he has taken to treat it, has caused or aggravated beyond its normal progression his bilateral hearing loss. He additionally asserts that his tinnitus is similarly directly service connected or secondary to his service-connected schizophrenia or medication he has taken to treat it. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Service connection may be awarded on a secondary basis if a claimant suffers a disability that is "proximately due to or the result of a service-connected disease or injury." See 38 C.F.R. § 3.310(a) (secondary service connection is awarded when a claimant suffers a disability that is "proximately due to or the result of a service-connected disease or injury"). The phrase "disability resulting from" in section 1110 "plainly expressed a causation requirement" and, therefore, service connection on a secondary basis is warranted only if a condition is actually caused or aggravated by a service-connected disability; it is not warranted in a circumstance where the claimed condition might have been less severe were it not for the service-connected disability. Spicer v. McDonough, No. 18-4489 (CAVC, September 14, 2021). Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The earliest hearing exam in the Veteran's claim file is his service entrance examination administered in February 1978. It respectively shows the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 15 LEFT 15 10 10 10 00 On the examination form, he specifically denied experiencing hearing loss. Less than a year later, in November 1978, a hearing test administered during a Medical Board examination prior to his medical discharge on other grounds showed the following results : HERTZ 500 1000 2000 3000 4000 RIGHT 05 10 05 _ 15 LEFT 00 05 00 _ 05 The Veteran again specifically denied suffering hearing loss. The audiologist characterized the Veteran's hearing as being "within normal limits" and additionally gave the Veteran a "1" for hearing under his physical profile PULHES score. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (quoting Para. 93(c)(1) AR 40-501, Change 35 (Feb. 9, 1987) "An individual having numerical designation of ' 1 ' under all factors is considered to possess a high level of medical fitness and, consequently is medically fit for any military assignment."). Over two decades after service, in June 1997, the Veteran reported no hearing loss when he was admitted to the hospital. A hearing test administered by a VA examiner less than a month later, however, in July 1997, revealed bilateral high frequency sensorial hearing loss, his right ear worse than his left. An audiogram produced the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 35 50 55 LEFT 10 10 10 30 55 Speech recognition was rated at 86 percent for the right ear, 96 percent for the left. When the examiner suggested that he be fitted for hearing aids, the Veteran demurred, telling the examiner he would "think about it." In January 2007 the Veteran participated in a VA hearing loss study. Though the specific results of his audiology tests were either not reported or have been lost, his hearing loss was described as exceeding the age-adjusted population norms and was "significant enough to warrant amplification." He reported loss in both ears and claimed a "significant history of military noise exposure," though he also reported that he had used hearing protection, at times even using cigarette butts when nothing else was available. He expressed his desire to improve his ability to hear the television, better understand conversations, and to reduce ringing in his ears, which he claimed he had experienced for more than 20 years. His scores generally were characterized as "mild to severe sensorineural hearing loss bilaterally," with word recognition "good" in his left ear and "poor" in his right. His HHIE-S score was "consistent with severe self-perceived hearing handicap." He was fitted for hearing aids in both ears in March 2007. A VA audiogram in February 2009 produced the following : HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 60 70 70 LEFT 20 25 55 65 70 The Veteran reported to the examiner that his tinnitus, which he described as a "ringing or 'air raid bell' with varying intensity," had begun during his active service, and that he had been "forced" to get used to it. His word discrimination scores using the Maryland CNC test was 72 percent in his right ear, 82 percent in his left. The examiner diagnosed sensorineural hearing loss and subjective tinnitus, but opined that, in light of the Veteran's normal test results at his enlistment and discharge, it was less likely as not the result of exposure to acoustic trauma during military service. The examiner added that the tinnitus was as likely as not a symptom associated with the Veteran's hearing loss. The Board subsequently denied service connection for bilateral hearing loss due to noise exposure in a July 2009 decision that the Veteran did not appeal. As noted above, the Veteran has alternatively claimed his hearing loss and/or tinnitus is etiologically related to his schizophrenia or the medication used to treat his schizophrenia. The Board previously remanded these claims to develop this theory. The Veteran was first afforded a June 2015 VA audiological examination, where the audiologist noted the following audiological results : HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 70 80 90 LEFT 30 50 70 75 75 The Veteran's word discrimination scores using the Maryland CNC test were 68 percent for his right ear, 84 percent for his left. His ipsilateral and contralateral reflexes in both ears were rated abnormal. The examiner diagnosed sensorineural hearing loss in both ears at both the range of 500 4000 HZ and the higher range of 6000 Hz or higher. The examiner concluded that the Veteran's hearing loss in both ears was less likely than not caused by or the result of an event in military service. The Veteran's enlistment and Medical Evaluation Board examinations, he explained, revealed hearing scores within the normal range and the Veteran had not reported hearing loss until many years later; there was thus no direct connection or history od chronicity. The examiner, an audiologist, declined to offer an opinion on whether schizophrenia of medication to treat it had caused or aggravated the Veteran's hearing loss, observing that such an opinion was outside the scope of his practice and would be better addressed by an otologist or other ear specialty professional. The VA audiologist additionally opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The Veteran had normal hearing at discharge, he related, and did not report symptoms until 12 years later. He again deferred to a more qualified specialist in offering an opinion as to any causal connection between medication for schizophrenia and tinnitus. Thus, a VA psychologist opinion was obtained in June 2016. The VA psychologist opined that it was less likely than not that the Veteran's bilateral hearing loss and tinnitus were caused or aggravated by his schizophrenia or any medication he may have taken to treat his schizophrenia or by any side effect of such medication. There is no scientific evidence to support the contention, she explained, that schizophrenia "pathophysiologically causes bilateral hearing loss or tinnitus." Furthermore, she observed, there is no scientific evidence supporting the contention that hearing loss disability or tinnitus is aggravated by schizophrenia or is a side effect of medication to treat schizophrenia. She further pointed out that the Veteran's psychiatry notes are silent regarding issue of bilateral hearing loss and tinnitus, though the records indicate the Veteran reported hearing a "buzzing" noise. In December 2020, a VA audiologist, after reviewing the Veteran's medical records, opined that his hearing loss was less likely than not incurred in or caused by the claimed an in-service injury, event, or illness. He observed that there had been no significant permanent shift in hearing thresholds beyond test variability from the Veteran's enlistment examination to his Medical Board examination. This was objective evidence that there was no permanent auditory damage on active duty from military noises. In addition, the Veteran's STRs revealed no reports of complaints or treatment for hearing loss, nor were there any complaints put forward at his Medical Board examination. The relationship between auditory damage and hearing loss is well established, the examiner emphasized, and the mere fact that someone is exposed to noise is not sufficient to establish damage. Since there is no evidence of auditory damage while on active duty, he concluded, the Veteran's hearing loss cannot be related to military noise and not some other etiology. The examiner declined to offer an opinion on whether the Veteran's hearing loss was caused or aggravated by his schizophrenia or medications given him to treat it. The same audiologist opined that the Veteran's tinnitus was less likely than not incurred in or caused by noise exposure while on active service. The Veteran did not report symptoms of tinnitus while in service, he emphasized, nor for another 12 years after he was discharged. The medical literature, he explained, does not support late onset noise-induced tinnitus. To the contrary, he quoted one source directly: "As the interval between a noise exposure and onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases." The audiologist again declined to offer an opinion as to whether the Veteran's schizophrenia, or the medication he took, either caused or aggravated his tinnitus. The following February 2021, a VA otolaryngologist reviewed the Veteran's medical records then examined him in person. He concluded that the Veteran's severe sensorineural hearing loss was less likely than not proximately due to or the result of his schizophrenia. Results of studies of individuals with psychotic disorders suggest that such disorders are associated with minor hearing difficulties, he explained, but not hearing impairment. For the same reason, he further determined that it was less likely than not that the Veteran's schizophrenia had aggravated his hearing loss beyond its natural progression. The otolaryngologist also opined that it was less likely than not that the Veteran's tinnitus was caused by his service-connected schizophrenia because there is no established medical relationship between schizophrenia and tinnitus. He observed that the severity of Veteran's tinnitus had not progressed beyond the baseline established when he first reported it 12 years after his discharge. Furthermore, he had been placed on the medication Seroquel for schizophrenia, which he reported actually "helped with the buzzing in his head." The examiner added that no other schizophrenia medication was reported in the medical records, and no other side effects had been documented. Service Connection for Bilateral Ear Hearing Loss is Denied. The Board finds that service connection for bilateral hearing loss, either directly or as secondary to schizophrenia or medication administered to treat schizophrenia, is not warranted. The Veteran's February 1978 medical examination indicates that his hearing was normal upon his induction. Review of the Veteran's STRs does not reveal any complaints of decreased hearing or any diagnosis of hearing loss during his brief term in service. The results of his November 1978 Medical Board examination, which also served as his separation examination, were within the normal range. None of the VA examinations of record indicate that the audiological examinations showed a significant threshold shift and both were within the normal range of test variability. On the accompanying report of medical history, he did not complain of hearing loss or ear trouble. The November 1978 examiner pronounced his hearing normal and rated it in the highest category. The Veteran did not complain of hearing loss in the years immediately after his discharge, and his hearing loss was not detected until 1997, almost 20 years following his separation from service. As the December 2020 examiner explained, and as the February 2009 and June 2015 examiners implicitly agreed, the normal enlistment and exit examination results indicate that the Veteran did not suffered any auditory damage while in service. Since research has established that auditory damage and hearing loss are closely linked, and the Veteran did not complain of hearing loss until decades after service, the fact that the Veteran suffered no damage while in service makes it less likely than not that his hearing loss was caused or aggravated by his military service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged and unaccounted for period of time without medical complaint can be taken into consideration by the Board as evidence of whether an injury or disease was incurred in service). Furthermore, the psychologist who reviewed the Veteran's records in 2016 and the otolaryngologist who examined him in February 2021 rejected any connection between the Veteran's schizophrenia, his treatment, or the side effects of the medication he was prescribed. The literature does not support a connection between schizophrenia and severe hearing loss, either causing it or aggravating it, they agreed. Furthermore, the Veteran's medical records, they both pointed out, contain no complaints about medication or its side effects, much less complaints about medication causing or aggravating hearing loss. As the otolaryngologist pointed out, the Veteran even reported that the medication helped lessen the buzzing he heard. The probative value attributed to a medical opinion issued by either VA or private treatment providers to support service connection depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board must also consider whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in supporting objective clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (the Board rejects medical opinions that do not indicate whether the physicians actually examined the veteran, do not provide the extent of the examination, and do not provide supporting clinical data). The Court has also held that a bare conclusion, even when reached by a health care professional, is not probative without an accurate factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The February 2009, June 2015, July 2016, December 2020, and February 2021 VA examiner opinions have set forth the results of their comprehensive reviews of the claims file and the Veteran's lay reports; reviewed the applicable medical literature; and provided clear and consistent rationales for their opinions. Hence, the Board finds the opinions highly probative and attaches significant weight to them on the matter of nexus between the Veteran's bilateral hearing loss and tinnitus and his active service, schizophrenia, and medication for schizophrenia. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran maintains that his bilateral hearing loss and tinnitus are a result, either directly or as a secondary cause, to his injuries in service. As a lay person, however, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Hearing loss and tinnitus are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that physical examinations as well as a familiarity with medical literature, and in this case, psychiatry and psychiatric medicines, are required to make such diagnoses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377. Thus, the Veteran's opinion regarding the etiology of his conditions is not competent medical evidence. The preponderance of the evidence is against a finding that the Veteran's claimed hearing loss was caused or aggravated by service, became manifest within the first year of separation from service, or was caused or aggravated by his service-connected disability or its treatment. Accordingly, service connection for bilateral hearing loss must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Tinnitus is Denied. Service connection for tinnitus, to include secondary to schizophrenia and medication to treat schizophrenia, is denied. The Veteran's STRs do not show any complaints or diagnosis of tinnitus during service. His November 1978 Medical Board examination similarly does not show findings to support hearing difficulties, and he did not report having ear problems or symptoms of tinnitus at the time. Decades after his discharge, the Veteran claimed that his tinnitus had actually begun approximately 12 years after his separation. The June 2007 examiner expressed his opinion that the Veteran's tinnitus was not related to service, but more probably a symptom of something else. The June 2016 VA psychologist indicated that the Veteran's tinnitus was not caused by or aggravated by his service-connected schizophrenia. There is no scientific evidence supporting the contention that tinnitus is either caused or aggravated by schizophrenia or is a side effect of medication taken to treat schizophrenia, she explained. Similarly, and audiologist in December 2020 opined that the Veteran's tinnitus was less likely than not incurred in or caused by noise exposure while on active service. The Veteran did not report symptoms of tinnitus while in service, he emphasized, nor for another 12 years after he was discharged. The medical literature, he explained, does not support late onset noise-induced tinnitus. An otolaryngologist opined in February 2021 that it was less likely than not that the Veteran's tinnitus was caused by his service-connected schizophrenia because there is no established medical relationship between schizophrenia and tinnitus. He observed further that the severity of Veteran's tinnitus had not progressed beyond the baseline established when he first reported it 12 years after his discharge. For reasons already articulated, the Board finds the VA examiners' opinions highly probative and attaches significant weight to them on the matters of nexus between the Veteran's tinnitus and his active service, schizophrenia, and the administration of medication for schizophrenia. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. In contrast, while the Board acknowledges the Veteran's belief that his tinnitus was caused or aggravated by his military service, either as a direct cause of or as secondary to his schizophrenia, due to his lack of medical expertise and the lateness of some of his claims, the Board affords less weight to his evidence. The Board has considered the Veteran's contention to the effect that his tinnitus manifested during service. However, the Board is compelled to point out that his statements were first provided for the record three decades after his discharge from service, and in essence represent, at best, remote recollections. Not only may the Veteran's memory be dimmed with time, but self-interest may play a role in the more recent statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony); cf. Pond v. West, 12 Vet. App. 341, 346 (1999). Concerning this, the Board notes that definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. Credibility "involves more than demeanor. It apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Carbo v. United States, 314 F.2d 718, 749 (9th Cir.s 1963); Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971). (Continued on the next page) In these circumstances, the Board finds that the length of time between the Veteran's separation from active duty in 1979 and first complaint of tinnitus decades later is persuasive evidence against continuity of symptomatology. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Therefore, entitlement to service connection for tinnitus based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. S 1131; 38 C.F.R. § 3.303(b). The preponderance of the evidence is against a finding that the Veteran's claimed tinnitus was caused or aggravated by his military service or his service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. At 49. Accordingly, service connection for tinnitus must be denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.