Citation Nr: 21073943 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-00 187 DATE: December 13, 2021 ORDER Service connection for tinnitus is denied. Service connection for bilateral hearing loss is denied. A total disability rating based on individual unemployability due to service-connected disabilities (hereinafter, TDIU) is denied. FINDINGS OF FACT 1. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. 2. Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. 3. In letters dated in February 2020 and December 2020, the Veteran was asked to provide information necessary to adjudicate his claim of entitlement to a TDIU, to include submitting a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability; more than a year has passed since he was sent the initial letter, and he has not submitted the requested evidence and information. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2014 by a Department of Veterans Affairs (VA) Regional Office. In October 2019, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. As the Veterans Law Judge who held the October 2019 hearing is no longer employed at the Board and can no longer participate in the appeal, VA offered the Veteran an additional hearing with a different Veterans Law Judge by way of a December 2019 letter. In January 2020, the Veteran declined to appear at another Board hearing and, as such, the Board will proceed accordingly. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that high frequency sensorineural hearing loss is considered an organic disease of the nervous system and therefore a presumptive disability. Likewise, tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for tinnitus. The Veteran reports that his tinnitus had its onset during service as a result of in-service noise exposure and has continued to the present time. Specifically, he reports exposure to constant aircraft noise while working on telephone poles and long perimeters as a wireman in service. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus. In this regard, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). Additionally, such diagnosis is confirmed by the medical evidence of record, to include the March 2021 VA examination. Furthermore, VA audiologists who reviewed the Veteran's records found his military occupational specialty (MOS) of wireman had a high probability of military noise exposure and, thus, the Board finds his reported in-service noise exposure is consistent with his MOS. Therefore, the remaining inquiry is whether such disorder is related to the Veteran's in-service noise exposure. In this regard, the record contains inconsistent evidence regarding the onset of the Veteran's tinnitus symptoms. Specifically, the November 2014 VA examination report shows the Veteran reported an onset of tinnitus "at least in the last five years" and that the ringing "just came on gradually." At the October 2019 Board hearing, the Veteran also testified that he asked for the test in 2014 because he was hearing ringing in his ears. He reported that the tinnitus was not constant, and when asked when he first experienced hearing loss, the Veteran responded that he had experienced the ringing "all the time off and on." A December 2019 VA Audiology Consult shows the Veteran reported an onset of tinnitus just before his last test in 2014; he indicated that he came to the test because it had started. According to a January 2021 VA examination report, the Veteran again reported an onset of tinnitus symptoms in 2014. However, a March 2021 VA examination report shows he reported that his tinnitus started shortly after he was discharged. Moreover, the record includes conflicting medical opinions as to the etiology of the Veteran's tinnitus. In particular, a November 2014 VA examiner opined such is at least as likely as not a symptom associated with hearing loss but not caused by or a result of military noise exposure. The VA examiner noted the Veteran had normal hearing sensitivity upon separation from service and that he had reported the onset of tinnitus in the last five years. According to the VA examiner, medical literature states that tinnitus has an immediate onset after significant noise exposure. Similarly, a January 2021 VA examiner opined it is less likely than not that the Veteran's tinnitus is due to military noise exposure. The VA examiner noted the Veteran reported an onset of tinnitus in 2014, many years after separation from service. In addition, the VA examiner found it significant that the Veteran's military records were silent for tinnitus and that no threshold shift was noted on audiometric examination from induction to separation. In a March 2021 opinion, however, a VA audiologist noted the Veteran's report that symptoms associated with tinnitus "started in service (or rather recognized shortly after discharge)." Additionally, the VA audiologist found it pertinent that the Veteran was exposed to hazardous noise during service according to his statements and his MOS. Per the VA audiologist, noise is known to cause tinnitus with or without hearing loss. Based on the Veteran's history of noise exposure in service, the onset of tinnitus symptoms in service, and the Veteran's description of his tinnitus, which meets the criteria for a diagnosis, the VA audiologist opined it is at least as likely as not that the current tinnitus is from military noise exposure. Conversely, an additional VA audiologist provided an unfavorable nexus opinion in April 2021. The VA audiologist initially noted that tinnitus is a subjective complaint and that no objective measure exists to verify the presence or absence of tinnitus. In addition, the etiology of tinnitus cannot be determined using current clinical technologies; rather, the etiology is typically inferred by patient history and a review of the medical records. In this case, the Veteran's claims file, to include his service medical records, does not reflect complaints or treatment for tinnitus. According to the 2014 VA examination report, the Veteran reported that his tinnitus started within five years from that examination. At the Board hearing, the Veteran stated that his tinnitus symptoms started shortly after service, which he repeated at the most recent VA examination. However, the VA audiologist noted the Veteran never provided a nexus between the onset of his tinnitus and military service and that his wife stated that he had only mentioned tinnitus once or twice to her. The VA audiologist explained that it is widely accepted that noise-induced tinnitus occurs at the time of the noise exposure and does not develop years after. Per the Institute of Medicine, "as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases." Based on this rationale, and the fact that the Veteran reported the onset to be after service and around 2009, which is almost 30 years after his separation from service, the VA audiologist opined the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure and most likely the result of occupational and recreational noise exposure after service, which included mechanic work, motors, impact wrenches, and hunting. Upon review, the Board cannot find credible the lay statements of record regarding the onset of the Veteran's tinnitus symptoms and, as such, affords them little probative weight. As a result, the Board also does not afford significant probative value to the March 2021 opinion, as the VA audiologist appears to have based the favorable opinion, in large part, on the Veteran's lay statements regarding his symptomatology. Conversely, the Board assigns great probative weight to the opinions provided in November 2014, January 2021, and April 2021, as such considered all of the pertinent and competent evidence of record, to include the Veteran's relevant medical history, and provided complete rationales, relying on and citing to the records reviewed. Moreover, the audiologists offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Further, the opinions are consistent with the contemporaneous medical evidence of record. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 284, 297 (1997). The Board has also considered the Veteran's assertions that his tinnitus is related to his in-service noise exposure. However, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of tinnitus involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the impact noise exposure has on the inner workings of the ear. Therefore, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his tinnitus is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that tinnitus manifested to a compensable degree within one year of the Veteran's separation from service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to such disorder, and he has not clearly indicated experiencing symptoms of tinnitus in service. Additionally, his reports regarding the onset of his tinnitus have been inconsistent, to include indicating that such began within the five years prior to the November 2014 VA examination and shortly after service and, therefore, are not credible. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the veteran in weighing evidence). Thus, presumptive service connection for tinnitus, to include based on a continuity of symptomatology, is not warranted. Based on the foregoing, the Board finds that tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he currently has bilateral hearing loss as a result of in-service exposure to constant aircraft noise while performing his duties as a wireman. 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, or 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss. Nevertheless, as noted above, the Board finds his reported in-service noise exposure is consistent with his MOS. Additionally, VA audiometric testing in November 2014 and January 2021 revealed bilateral hearing loss as defined by VA regulation during the pendency of the appeal. Thus, the remaining inquiry is whether such disorder is related to his acknowledged in-service noise exposure. In November 2014, the VA examiner opined the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in service. The VA examiner based the unfavorable opinion on the pre-induction and separation audiograms, which revealed normal hearing sensitivity and no threshold shift from pre-induction to separation. Similarly, the January 2021 VA examiner opined it is less likely than not that the Veteran's current hearing loss is due to military noise exposure. The VA examiner's rationale cited to the absence of threshold shifts on audiometric examination from induction to separation and the lack of complaints of hearing loss in the military services. Likewise, a March 2021 VA examiner determined the Veteran's bilateral hearing loss was not caused by or a result of an event in military service. The VA examiner noted the entrance test and separation test indicated hearing within normal limits and that there was no significant change in hearing from entrance to separation. The VA examiner acknowledged the Veteran's exposure to hazardous noise and that noise is known to cause hearing loss. However, without a change in hearing during service, the VA examiner found a nexus could not be established. Although there was some research suggesting late onset hearing loss, the VA examiner explained that those studies had only been completed on mice and that the mice that experienced a later hearing loss also showed a temporary threshold shift during the noise exposure with recovery. According to the VA examiner, current research does not support late onset hearing loss; thus, the hearing loss measured currently was less likely caused from military noise exposure. Upon review, the Board affords great probative value to the aforementioned opinions, when considered together, as such were based on a review of all of the pertinent evidence of record, to include the lay statements and the Veteran's relevant medical history, and pertinent medical literature, and provide a complete rationale, relying on and citing to the records reviewed. Moreover, the VA audiologists offered clear conclusions with supporting data. Nieves-Rodriguez, 22 Vet. App. 295; Stefl, 21 Vet. App. at 124. The opinions are also consistent with the contemporaneous medical evidence of record, to include the Veteran's service treatment records and post-service treatment records, and contemplate his specific circumstances. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). Furthermore, there is no medical opinion to the contrary. In this regard, the Board has considered the Veteran's statements that his bilateral hearing loss is related to his acknowledged in-service noise exposure; however, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. Jandreau, 492 F.3d at 1376-77. The etiology of hearing loss is a matter not capable of lay observation. Rather, such requires medical expertise to determine. Specifically, the question of the diagnosis and etiology of hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it requires the administration and interpretation of audiological testing and knowledge of the impact noise exposure has on the inner ear. Woehlaert, 21 Vet. App. at 462. Accordingly, the Veteran's opinion as to the etiology of his bilateral hearing loss is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that bilateral hearing loss manifested to a compensable degree within one year of the Veteran's separation from active duty. In this regard, the Board notes the representative's contentions that the August 1968 separation examination appears incomplete given that four frequencies reflect a "slash" through them. Such examination revealed normal hearing acuity, and there is no evidence indicating the test was incomplete or unable to be performed. Further, in contrast to his current assertions, the Veteran denied currently or previously experiencing hearing loss at such time. In addition, the medical evidence of record does not reflect a diagnosis of bilateral hearing loss until 2014. Although the Veteran has reported a gradual onset of symptoms dating back to service, the medical evidence of record indicates he first complained of relevant symptomatology in 2014. Moreover, whether the symptoms the Veteran reportedly experienced during or after service are in any way related to his currently diagnosed bilateral hearing loss is a matter that also requires medical expertise to determine. Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Board finds presumptive service connection for bilateral hearing loss, to include on the basis of a continuity of symptomatology, is not warranted. In conclusion, the Board finds that bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. Consequently, service connection for such disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Entitlement to a TDIU. In February 2020, the Board found the Veteran submitted evidence suggesting that he was unemployable due to his service-connected disabilities and, therefore, remanded the issue for additional evidentiary development, to include a request for the Veteran to complete VA Form 21-8940 in support of a claim for a TDIU. The Veteran was sent a letter in February 2020 requesting that he complete such form, and to date he has failed to do so. In December 2020, the Board once again remanded the claim for a TDIU for further development, to include an additional request for him to complete VA Form 21-8940. Accordingly, the Agency of Original Jurisdiction sent him a notification letter that same month requesting the relevant information; the Veteran has yet to provide any information, to include a complete VA Form 21-8940, in response. Rather, in February 2021, the Veteran indicated that he had no other information or evidence to submit and requested that the case be sent to the Board for further appellate consideration as soon as possible. VA Form 21-8940 requests information regarding the Veteran's employment, education, and training history, to include all employers for the last five years, the hours worked per week, the time lost from illness, the circumstances under which the Veteran left his last job, and whether the Veteran has attempted to obtain employment since he became too disabled to work. The duty to assist is not a one-way street; a veteran may not passively wait for assistance when his cooperation is needed for evidentiary development critical to a claim for VA benefits [nor may he deliberately choose to ignore requests for evidence deemed necessary to properly adjudicate his claim]. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that the Veteran's failure to cooperate with VA's efforts to secure critical evidence in this matter frustrates VA's attempts to assess his employability. As a result of such failure to cooperate, the Board is presented with a less-than-complete evidentiary picture. In such circumstances, proper adjudication on the merits is not possible. The governing regulation in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the Regional Office requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the Regional Office is required, by VA regulations, to consider the claim abandoned). Notably, the Court has held that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Hence, the Board has no recourse but to conclude that because of his failure to cooperate, the Veteran has abandoned his claim for a TDIU. As such, the Board finds that the appeal must be denied. Id. Arif Syed Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.