Citation Nr: 21073905 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-23 561 DATE: December 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection, to include on a secondary basis, for bilateral tinnitus is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss was etiologically related to his active service. 2. The Veteran's bilateral tinnitus did not originate in service or until years thereafter and is not otherwise etiologically related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1957 to July 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board denied service connection for bilateral hearing loss and bilateral tinnitus. The Veteran appealed the Board's decision denying service connection for bilateral hearing loss and bilateral tinnitus to the United States Court of Appeals for Veterans Claims (Court), which, in July 2020, granted a Joint Motion for Remand (JMR). The Court's order vacated the Board's decision and remanded the matter to the Board consistent with the terms of the joint motion. The Veteran died in April 2020. Within a year of his death and while the Veteran's appeal was pending before the Court, the Veteran's surviving spouse filed a request to be substituted as the appellant. The Court granted the appellant's request to be substituted (under 38 U.S.C. § 5121A) in the Veteran's appeal. Accordingly, the appellant has been substituted as the claimant for the purposes of the service connection issues on appeal. The Board notes that this matter has been advanced on the docket pursuant to 38 C.F.R. §20.900(c). SERVICE CONNECTION 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for bilateral tinnitus Factual Background A May 1957 report of medical examination noted that evaluation of the Veteran's ears and hearing was normal. A contemporaneous report of medical history noted that the Veteran had ear, nose, or throat trouble but did not have running ears. An April 1958 Hearing Conservation Data record contained in the Veteran's service treatment records noted that he had 8 hours of noise exposure for the past three to five months. The record further stated that the Veteran seldom or never wore ear protection other than cotton during exposure to loud noise. However, the record also noted that the Veteran most frequently used elastic ear protection and used ear protection during his most recent 14 plus days exposure to noise. The Veteran endorsed exposure to noise during basic training, target practice and hunting. The Veteran was afforded an in-service audiological evaluation in April 2016, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 1000 2000 3000 4000 add 15 10 10 10 5 For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, -5. -5, -5, 15, and -5. Decibel loss in the left ear was, respectively, 0, -5, -5, -5, and -5. Using the ISO-ANSI conversion, the decibel loss in the right ear was, respectively, 10, 5, 5, 25, and 0. Decibel loss in the left ear was, respectively, 15, 5, 5, 5, and 0. Another July 1958 Hearing Conservation Data record noted that the Veteran's current noise exposure had been 8 hours for the past three to five months, that the Veteran seldom or never wore ear protection other than dry cotton during exposure to loud noise, but that he most recently used elastic ear protection, and was recently exposed to 0 to 29 minutes of noise daily for the past seven to thirteen days. Audiogram results were as follows: For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, -5, -5, -5, -5, and 0. Decibel loss in the left ear was, respectively, 0, 0, 0, 5, and 0. Using the ISO-ANSI conversion, the decibel loss in the right ear was, respectively, 10, 5, 5, 5, 5. Decibel loss in the left ear was, respectively, 15, 10, 10, 15, 5. Another October 1959 Hearing Conservation Data record noted that the Veteran had 8 hours of exposure time to noise daily for the past 2 years. The record further noted that the Veteran seldom or never wore ear protection other than dry cotton during exposure to loud noise but that he most frequently used elastic ear protection. The record then stated that the Veteran used ear protection. The record further noted that the Veteran's most recent noise exposure was 2 hours per day for the past two to six days. Audiogram results were as follows: For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, -5, -5, -5, -5, and -5. Decibel loss in the left ear was, respectively, 0, -5, -5, -5, and -5. Using the ISO-ANSI conversion, the decibel loss in the right ear was, respectively, 10, 5, 5, 5, and 0. Decibel loss in the left ear was, respectively, 15, 5, 5, 5 and 0. A January 1960 report of medical examination noted evaluation of the Veteran's ears and hearing was normal. Audiogram results were as follows: For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, -5, -5, -5, -5, and -5. Decibel loss in the left ear was, respectively, 5, -5, -5, -5, and -5. Using the ISO-ANSI conversion, the decibel loss in the right ear was, respectively, 10, 5, 5, 5, and 0. Decibel loss in the left ear was, respectively, 15, 5, 5, 5, and 0. A February 1961 report of medical examination again noted that evaluation of the Veteran's ears and hearing was normal. Audiogram results were as follows: For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, -5, -5, -5, -5, and -5. Decibel loss in the left ear was, respectively, -5, -5, -5, -5, and -5. Using the ISO-ANSI conversion, the decibel loss in the right ear was, respectively, 10, 5, 5, 5, and 0. Decibel loss in the left ear was, respectively, 10, 5, 5, 5, and 0. Likewise, a May 1964 report of medical examination again revealed that evaluation of the Veteran's ears and hearing was normal. For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, 5, 0, 0, -5, and -5. Decibel loss in the left ear was, respectively, 0, -5, -5, -5, and -5. Using the ISO-ANSI conversion, the decibel loss in the right ear was, respectively, 10, 10, 10, 5, and 0. Decibel loss in the left ear was, respectively, 15, 5, 5, 5, and 0. A contemporaneous May 1964 report of medical history noted that the Veteran did not have running ears nor ear, nose, or throat trouble. A June 2014 VA treatment record noted that the Veteran complained of hearing deficit but denied tinnitus, vertigo, or deafness. The record further noted that the Veteran's ear canal had excess cerumen so that parts of his ear could not be visualized. Lastly, the record noted that the Veteran had hearing deficit on whisper test. An October 2014 VA audiology consultation record noted that the Veteran had mild to severe sensorineural hearing loss bilaterally with poor speech discrimination in his right ear and fair speech discrimination in his left ear. Word recognition scores were 56 percent for the right ear and 72 percent for the left ear, but the word list used was not identified. The record further notes that hearing aids were ordered for the Veteran. The Veteran was afforded an in-person VA examination in March 2016. The VA examiner considered the Veteran's history of having served as an aircraft mechanic in the military from 1957 to 1964 as well as the Veteran's reported history of daily in-service noise exposure, exposure to noise from jet engines, and lack of hearing protection worn during service. Post-service, the Veteran reported that he worked for Boeing for 35 years and did mostly desk work. The Veteran stated that he first perceived hearing problems in about 1960 to 1961. He further reported that his bilateral tinnitus was manifested by ringing and began approximately 5 years prior to the examination. Audiologic testing was performed. For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, 25, 35, 55, 60, and 60. Decibel loss in the left ear was, respectively, 30, 35, 55, 65, and 70. The average score for 1000 to 4000 Hertz was 53 for the right ear and 56 for the left ear. Speech discrimination scores using the Maryland CNC word list were 92 percent for the right ear and 96 percent for the left ear. The Veteran was diagnosed with sensorineural hearing loss bilaterally. The VA examiner determined that the Veteran's bilateral hearing loss was not at least as likely as not (50% probability or greater probability) caused by or a result of an event in military service. The VA examiner noted that the Veteran did not have a permanent positive threshold shift in hearing during service and that at separation his hearing was well within normal limits with no signs of acoustic damage. Accordingly, the VA examiner determined that the Veteran's hearing loss had a delayed onset due to normal hearing at separation. The VA examiner then cited to the Institute of Medicine's 2006 report entitled "Noise and Military Service-Implications for Hearing Loss and Tinnitus" in support of the examiner's negative nexus opinion. With regard to the Veteran's bilateral tinnitus, the VA examiner determined that the Veteran's tinnitus was less likely than not (less than 50% probability) caused by or a result of military noise exposure. The VA examiner explained that the Veteran's service treatment records were negative for reports or complaints of tinnitus. The VA examiner further explained that the Veteran reported delayed onset tinnitus that began 5 years ago, 47 years post-military service, and that noise induced tinnitus would occur at the time of exposure, not years later. The VA examiner also determined that the Veteran's tinnitus was less likely than not (less than 50 percent probability) a symptom associated with the Veteran's hearing loss. The VA examiner explained that although hearing loss and tinnitus were commonly present together, they were not necessarily mutually occurring and had varying causes including certain medications, stress, anxiety, nicotine, sodium, excessive caffeine, etc. The VA examiner explained that hearing loss did not cause tinnitus and vice versa. On his April 2016 notice of disagreement, the Veteran's representative asserted that although the Veteran stated he began experiencing tinnitus 5 years ago, it was plausible that the Veteran misunderstood the question asked or was reporting additional ear symptoms. Analysis 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). Sensorineural hearing loss and tinnitus are conditions of the organic nervous system which is an enumerated condition under 38 C.F.R. § 3.309(a) and for which presumptive service connection is for consideration. Walker, 708 F.3d 1331. 38 C.F.R. § 3.385 outlines the requirements that a Veteran must meet to be diagnosed with a hearing loss disability for VA purposes and states: 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, 4000 Hertz 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Board notes that in Hensley, the United States Court of Appeals for Veterans Claims (Court) held that section 3.385 of the regulations, which defines the criteria for establishing a hearing loss disability, does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. at 159. "Therefore, when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Id. at 160. a. Entitlement to service connection for bilateral hearing loss In affording the appellant the benefit of the doubt, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. The March 2016 VA examiner's report confirmed that the Veteran had a diagnosis of bilateral sensorineural hearing loss. In addition, the Veteran's service treatment records confirm that he was exposed to noise on a regular basis in his military occupational specialty as an aircraft mechanic. The question is whether a nexus existed between the Veteran's bilateral hearing loss and his service. The Board notes that the Veteran's in-service audiograms revealed that he had normal hearing for VA purposes. However, as provided in Hensley, the Board acknowledges that hearing within normal limits on audiometric testing at separation from service does not preclude entitlement to service connection. Id. at 159-160. The Board also acknowledges the March 2016 VA opinion against the claim. The Board notes, however, that the Veteran reported that his hearing loss began in 1960 to 1961. See March 2016 VA examiner's report. No other statements by the Veteran to the contrary exist. Furthermore, the Veteran has since passed and further examination of the Veteran is not possible. In affording the appellant the benefit of the doubt, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. 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. At the outset, the Board notes that only a direct theory of entitlement to service connection for tinnitus was raised by the Veteran, the appellant, and their representatives. Here, the Veteran stated during his March 2016 VA examination that his tinnitus began 5 years prior, which would have been in approximately 2011 and more than 40 years after his separation from active-duty service. The Board acknowledges the April 2016 argument by the Veteran's representative that the Veteran may have misunderstood the question. However, in June 2014 the Veteran also denied experiencing any tinnitus. See, June 2014 VA treatment record. The Veteran himself never stated that his tinnitus began during service or prior to 2011. The Board finds that the April 2016 argument that the Veteran's tinnitus began earlier lacks credibility and is in direct conflict with the Veteran's June 2014 and March 2016 statements. 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). In addition, with regard to the years-long evidentiary gap in this case between the Veteran's July 1964 separation from active duty service and the earliest reports of tinnitus in March 2016, 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). Lastly, the Veteran was competent to report when he began experiencing tinnitus symptoms; however, as a layperson lacking in medical training and expertise, he could not 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 tinnitus are of no probative value. Further, even if his opinion regarding the etiology of his tinnitus was afforded some probative value, it is far outweighed by the opinion provided by the March 2016 VA examiner who has 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 did not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there was no competent evidence of a link between the Veteran's tinnitus symptoms and his active service. Accordingly, the Board affords greater probative value to the March 2016 VA examiner's report which determined that the Veteran's tinnitus was not etiologically related to his active-duty service nor to his bilateral hearing loss, although the Board emphasizes that no evidence in the record suggests that secondary service connection was for application or otherwise raised by the record. (Continued on the next page) The claim for 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, Associate 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.