Citation Nr: 21073933 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 18-28 580 DATE: December 13, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for right ear tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not support that the Veteran's hearing loss began in service, within a year of service, or is etiologically related to in-service acoustic trauma or any other in-service incident. 2. The preponderance of the evidence is against a finding that the Veteran's tinnitus began in service, within a year of service, or is etiologically related to in-service acoustic trauma or any other in-service incident. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss 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 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 in the United States Army from April 1969 to December 1971, including service in the Republic of Vietnam (Vietnam). This matter comes to the Board of Veterans' Appeals (Board) from an October 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for bilateral hearing loss and tinnitus. In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the claims file. Subsequently, the Board remanded the claim in August 2021 for additional medical opinions. Among the Boards instructions on remand was for the VA examiner to consider the Veteran's entrance and separation hearing examination scores under both the American Standards Association (ASA) units and the International Standards Organization American National Standards Institute (ISO-ANSI) units. The two scales were both in use during the period the Veteran was tested, and where it has not been clearly indicated under which scale the test was conducted, it is currently Board practice to convert the scores and consider both for audiometric tests conducted between January 1, 1967, and December 31, 1970. The VA examiner who reviewed the scores in September 2021, under the impression that both the entrance and separation examinations had been conducted under the ISO-ANSI scales, did not specifically convert and compare the scores before rendering her opinion. Because under both scales there was no significant threshold shift from entrance to separation, and her opinion was based largely on the lack of loss of hearing acuity or significant threshold shift demonstrated in service, her analysis of the issue of service connection would likely be unchanged by remanding the claim yet again for the examiner to compare the converted scores. The Board remains able to consider the audiometric results under both standards and to apply the standard most advantageous to the Veteran. The September 2021 examination therefore substantially complies with the Board's remand request. Substantial compliance with the remand request having been achieved, the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). 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 has caused bilateral hearing loss. He also asserts that his tinnitus is similarly directly service connected. 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. 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). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). 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 1969. It respectively shows the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 05 (20) 00 (10) 00 (10) -- (--) 15 (20) LEFT 10 (25) 10 (20) 00 (10) -- (--) 00 (05) On the examination form, he did not report ear or hearing trouble, though he reported several other health issues. Similarly, at his separation examination in December 1971 he did not complain of hearing difficulties or ear problems. His hearing test revealed the following results (with conversions in parenthesis): HERTZ 500 1000 2000 3000 4000 RIGHT 05 (20) 05 (15) 00 (10) 00 (10) 00 (05) LEFT 05 (20) 05 (15) 10 (20) 00 (10) 00 (05) The examiner did not note any abnormalities with the Veteran's ears or hearing. The Veteran appears to have handwritten "I am in good health," then signed the form. The earliest reference in the claims file to any complaint by the Veteran about his ears was in December 2009, when he reported a "small pain" in his right ear. The patient notes do not include any mention of hearing complaints by the Veteran or refer to difficulty communicating with him. In May 2017, the Veteran reported to a VA facility complaining of tinnitus in his right ear, which he reported had started six to seven years earlier. He denied tinnitus in his left ear. He stated that the disability sometimes interfered with his ability to fall asleep. He also reported "occasional" difficulty hearing, depending on the environment, but confessed he did not think he needed hearing aids. He had been on the firing range without hearing protection, he recalled, and had experienced "daily" incoming barrages while in Vietnam. Due to cerumen in his left ear, a hearing test was postponed. The Veteran returned a month later in June 2017. A hearing test revealed normal hearing sensitivity in his right ear from 250Hz through 1000Hz, then sloping from a mild to moderately-severe sensorineural hearing loss from 2000HZ to 8000 Hz. His left ear showed normal hearing sensitivity from 250Hz through 2000HZ sloping from a mild to moderate sensorineural hearing loss from 3000HZ to 8000 Hz. Speech reception thresholds were consistent with the puretone findings, with word recognition score good bilaterally (84 percent right ear, 88 percent left). He was measured for hearing aids, given a temporary set, and asked to return when the measured set was delivered from the lab. The Veteran had difficulty with his hearing aids the following June and July; he lost the first pair in June, then dropped and damaged the second pair in July. In mid-July 2017 he was fitted for the pair he had been measured for the previous June and instructed how to use them. In September 2017 he filed a fully developed claim for service connection for hearing loss and tinnitus due to noise exposure while on active duty. During a VA examination in October 2017, the Veteran described his functional hearing loss as being unable to hear his turn signal while driving, when others in the car could, or having to ask passengers in the vehicle to repeat themselves. He also provided additional details of his noise exposure while in Vietnam. He related that he had been exposed to bombing, rocket fire, machine gun fire, and helicopters. He added that when he was stationed with an armored division at Fort Knox before his overseas deployment he had been exposed to noise from tank engines, as well as tank and artillery fire, without any hearing protection. An audiogram produced the following puretone thresholds using ISO-ANSI units: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 40 45 55 LEFT 10 20 25 40 45 Speech recognition was rated at 96 percent for the right ear, 94 percent for the left using the Maryland CNC word scale. The examiner concluded there was sensorineural hearing loss in both ears between the frequencies of 500 to 4000 HZ and sensorineural hearing loss in the left ear in the range of 6000 HZ or above. However, she concluded that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for either ear. The examiner opined that the Veteran's hearing loss was less likely than not caused by or the result of military noise exposure. She explained that his service treatment records (STRs), which included his entrance and separation examinations, were silent for any complaints of hearing difficulties while he was serving, and his audiogram results indicated an absence of any evidence of cochlear damage during service. Furthermore, she observed, the Veteran's duties as a clerk reduced the probability that he had been exposed to hazardous noise. The Veteran was also examined for tinnitus. He informed the examiner that it had started 10 years previously the examiner noted that only four months earlier he had claimed it had started six to seven years before and complained that "at times" it made sleeping difficult. The examiner opined that it was less likely than not that the condition was due to military noise exposure. She again observed that the Veteran's STRs did not reveal any complaints of tinnitus, and the test results indicated no cochlear damage while in service. Additionally, even accepting the Veteran's longer estimate of when he first noticed the problem, the onset of the disability was 35 years after he was discharged. After the RO denied his claim for hearing loss and tinnitus in October 2017, the Veteran's filed a Notice of Disagreement (NOD) the following February 2018. He reiterated that he had been exposed to tank gunfire and engine noise while on guard duty when stationed at Fort Knox. In addition to the other forms of noise he had reported being exposed to in Vietnam - bombing and gunfire - he asserted that he had also been exposed to napalm explosions. When the Veteran reported difficulty with his hearing aids in May 2019, he was tested for the first time since September 2017. His results had not changed: mild to severe sensorineural hearing loss in his right ear between the ranges of 500 Hz and 8000 Hz, no loss sloping to moderate sensorineural hearing loss between the same ranges in his left. Word recognition was fair in his right ear (76 percent) and good (84 percent) in his left. His hearing aids were examined and it was determined that they should be sent back to the lab to be readjusted. The remade hearing aids were recalibrated and fitted for the Veteran the following June 2019. At the hearing before the VLJ, the Veteran admitted that as a stock control clerk he had never been under fire during his service in Vietnam, though he could hear the bombing. He reiterated that while he had been posted at Fort Knox, he had done guard duty around the division's tanks as they idled in the motor pool and had been present during firing exercises. He explained that although he had noticed hearing loss immediately after service, he had "learned to live with it" and not realized that it might be service connected or that he could file for disability until decades later when other veterans encouraged him to file. He speculated that he had complained of hearing loss to family or friends at the time he noticed it, and the VLJ encouraged him to obtain and submit statements from anyone who could recall him making such complaints. He noticed the tinnitus, he testified, "two or three years, maybe four" after his separation from service, but as with his hearing loss he had been unaware that it may have been service connected or that he could file a claim for disability until decades later. Following the remand by the Board, the Veteran was examined by a VA audiologist in September 2021. At the time of the examination, the Veteran informed the examiner that his hearing and communication difficulties began around the year 2000, almost 30 years after his separation from the Army. He additionally reported that tinnitus affected his right ear only, was constant, and dated its onset around the year 2000, nearly seven years sooner than he had claimed he had noticed it before. He informed the examiner that he had been exposed to military noise when he had fired a right-handed weapon during basic training; being exposed to motor pool noise when a parts clerk at Fort Knox; and that he had been exposed to bombing, aircraft noise, and weapons fire while serving in Vietnam, all without hearing protection. A VA audiogram produced the following puretone threshold values: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 60 60 LEFT 25 25 35 50 50 His word discrimination scores using the Maryland CNC test was 90 percent in his right ear, 94 percent in his left. The examiner diagnosed sensorineural hearing loss in both ears in frequency ranges between 500 Hz and 4000 Hz and 6000 Hz and higher. The examiner opined that the Veteran's hearing loss was less likely as not caused by or the result of military noise. After observing that the Veteran's entrance and separation examinations revealed normal thresholds without significant shifts, and that the Veteran's military occupational specialty (MOS) of store clerk had a generally low probability of hazardous noise exposure, she referred to the Institute of Medicine (IOM) report released in 2005 that concluded that, at the time, scientific research had determined only that hearing loss from noise injuries occurs immediately following exposure. The examiner added that there was no scientific basis for concluding that permanent hearing loss directly attributable to noise exposure will develop long after exposure. Therefore, she reasoned, the Veteran's hearing loss was less likely than not caused by or the result of military noise exposure. The examiner similarly concluded that the Veteran's tinnitus was less likely than not caused by or the result of military noise exposure. The unilateral nature of the malady suggested it was not related to military service, as both ears had been exposed to military noise, yet the Veteran reported tinnitus in only one. In addition, its onset more than 30 years later weighed against the probability that his tinnitus was caused by or due to his exposure to military noise. Service connection for bilateral hearing loss is denied. The Board finds that the preponderance of the evidence is against a finding of service connection for bilateral hearing loss. The Veteran's STRs do not indicate he ever complained of hearing difficulty or loss while he was on active duty. His entrance and separation examination results show no hearing loss and suggest that his hearing physiology was not damaged by noise exposure either at Fort Knox or in Vietnam. Though the Veteran's statements on the issue are contradictory, his most recent, and most definite, statement on when he first noticed hearing loss places it no earlier than 2000, almost 30 years after his separation. As the September 2021 VA examiner explained, and as the September 2017 VA examiner implicitly agreed, the normal enlistment and exit examination results indicate that the Veteran did not suffer any auditory damage while in service. Since research has established that auditory damage and hearing loss are closely linked in time, and the Veteran did not complain of hearing loss until decades after service, the fact that he 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). The Board has considered the direction provided by the Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). In that decision, the Court determined that the Board has an obligation to address contradictory or qualifying aspects of the IOM report referenced by the September 2021 VA audiologist when the issue is expressly raised by the veteran or reasonably raised from a review of the record. Although differing aspects of the IOM report were not raised by the Veteran, because the examiner in part based her opinion on the IOM report, the Board will discuss it. The report itself states that there is no sufficient scientific basis for the existence of delayed onset hearing loss, but also goes on to say that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." Here, the VA examiner essentially reiterated the IOM's finding that there was not a basis for the existence of delayed-onset hearing loss and reconciled the report's notation that there was not sufficient evidence as to whether hearing loss occurred after the cessation of noise exposure by stating that no research produced since the IOM report has reversed their finding that delayed-onset hearing loss in the absence of damage from noise is unlikely. As such, she has essentially found that the lack of medical literature since the IOM report contradicting the conclusion against delayed-onset hearing loss is determinative. The Board finds that the examiner's conclusions, based on her medical expertise and review of available literature, as well as the particular medical history and circumstances of this Veteran, address the concerns raised in McCray. As such, the Board finds the VA opinion to be highly probative. The September 2021 and September 2017 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 his military service. 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 is a result of his 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). He is, however, competent to describe symptomology he experiences. The Board has considered the Veteran's contentions during the Board hearing to the effect that his bilateral hearing loss manifested shortly after his service. His statements are vague, however; contradicted by his later definitive statement to the September 2021 examiner that its onset was in 2000; undercut by his failure in 2009 to mention hearing difficulties when he complained about experiencing pain in his ear; and unsupported by third party statements. Moreover, the Board is compelled to point out that his positive statements were provided for the record decades after his discharge, 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. 1963); Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971). In these circumstances, the Board finds that the length of time between the Veteran's separation from active duty in 1971 and his first complaint of bilateral hearing loss nearly three decades later in 2017 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 bilateral hearing loss based on post-service continuity of symptomatology must also be denied. 38 U.S.C. S 1131; 38 C.F.R. § 3.303(b). 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 establishes a continuity of symptomatology. 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, 3.303, 3.307; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for right ear tinnitus is denied. The Board finds that service connection for tinnitus is not supported by the preponderance of the evidence. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. The Veteran's STRs do not show any complaints or diagnosis of tinnitus during service nor did he report having ear problems or symptoms of tinnitus at his separation examination in December 1971. His statements about the onset of tinnitus are somewhat inconsistent, ranging from claim that it began within "two or three years, four years after service," to repeated claims, including his most recent, that it began 30 or more years after his discharge. The preponderance of the evidence multiple statements over time that it began almost thirty years after military service weighs in favor of finding of very late onset.. The Board finds that these inconsistencies in the record regarding the Veteran's report of the onset of his tinnitus in service undercut the credibility of the statements. As such, the Board does not attach much probative value to the varying reports of the onset of symptoms. The June 2017 audiologist expressed her opinion that the Veteran's tinnitus was not related to his military service because he did not complain of tinnitus while on active duty, there was no sign of cochlear damage based on his audiogram results, and he did not begin to complain about tinnitus for many years after his discharge. Similarly, the VA audiologist in September 2021 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, she emphasized, nor for decades after he was discharged. Furthermore, she pointed out, the Veteran consistently reported that the ringing he heard was in his right ear only, although both ears had been exposed to noise while he was on active service, further suggesting that the tinnitus in his right year was not the result of military noise. The Board finds that the examiners' opinions, taken in connection with the Veteran's own reported onset of symptoms, constitutes highly probative evidence against service connection. (Continued on the next page) The preponderance of the evidence is against a finding that the Veteran's claimed tinnitus was caused or aggravated by his military service, became manifest within the first year of separation from service, or establishes a continuity of symptomatology. 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.