Citation Nr: 21076301 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-09 985 DATE: December 23, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss is the result of acoustic trauma in service. Sensorineural hearing loss was first demonstrated several years post-service. 2. The preponderance of the evidence is against a finding that bilateral tinnitus is the result of acoustic trauma in service. Tinnitus was first demonstrated years post-service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for bilateral tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1974 to August 1977. This matter comes to the Board of Veterans' Appeals (Board) from an appeal of an August 2014 Rating Decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Board previously remanded this case for additional development in January 2019 and July 2021. The matter has now returned to the Board for appellate review. The Board has determined that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including sensorineural hearing loss and tinnitus, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period of time is usually one year. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss is attributable to his active military service. Impaired hearing constitutes 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 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 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 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered a disability eligible for service connection. 38 C.F.R. § 3.385. The Veteran's service treatment records (STRs) are silent as to any diagnosis or treatment for bilateral hearing loss during active service. His Military Occupational Specialty (MOS) was as a food service specialist. Service treatment records reveal that audiometric findings were within normal limits during service. The Veteran denied ear trouble and hearing loss at the time of separation. In July 2014, the Veteran was afforded a VA examination in connection with his claim. At the time of the examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 45 55 60 LEFT 15 20 50 65 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. The average decibel loss was 44 in the right ear and 50 in the left ear. The examiner opined that the Veteran's bilateral hearing loss was less likely as not the result of his active military service. The examiner noted the Veteran's reported military noise exposure that included tanks and helicopters. The examiner also noted the Veteran's civilian noise exposure included owning and operating a business that delivered necessities to construction sites. The Veteran denied any recreational noise exposure and a family history of hearing loss or ear surgery. Ultimately, the examiner found that "although the definitive studies to address whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure, have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occurred." After considering the Veteran's entire medical history and his lay reports regarding his hearing loss, the examiner found that there was insufficient basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after the actual noise exposure. Private treatment records from June 2014 include a private audiological examination. The examiner noted that Veteran had a diagnosis of bilateral sensorineural hearing loss. However, the private treatment records do not provide any medical opinion as to the nature and etiology of the Veteran's hearing loss disability. Moreover, there was no Maryland CNC testing noted in the private treatment record. In September 2019, the Veteran was afforded an additional VA audiological examination. At the time of the examination, the examiner noted that pure tone thresholds could not be tested. In particular, the examiner noted that speech reception threshold and pure tone average showed highly inconsistent responses from the Veteran, which the examiner noted invalidated the audiological testing. Further, the examiner observed that immittance testing was consistent with a high frequency hearing loss bilaterally. Also, the examiner stated that it was likely that the Veteran's hearing was likely within normal limits from 500 to 2000 Hz bilaterally. Likewise, the examiner noted that word discrimination testing was not appropriate for the Veteran due to language difficulties, cognitive problems, and/or inconsistent word recognition that made combined use of pure tone average and word recognition scores inappropriate. Consequently, the examiner declined to provide an etiological opinion due to the lack of an accurate response to testing. Another VA examination was conducted in August 2021, in connection with the Veteran's claim. Once again, the examiner was unable to conduct testing in all frequencies. The examiner explained that speech reception threshold and pure tone average showed highly inconsistent responses from the Veteran, which invalidated the examination. Equally, the examiner noted that word discrimination testing was not appropriate due to language difficulties, cognitive problems, and/or inconsistent word recognition scores. The examiner indicated that due to the lack of accurate responses to testing, the examiner was unable to provide an etiological opinion with respect to the claimed bilateral hearing loss without resorting to speculation. In an October 2021 addendum opinion, the examiner explained that this most recent testing was unsuccessful due to lack of cooperation from the Veteran. There are no medical opinions of record in support of the Veteran's claim. The medical evidence, nor the Veteran's lay statements, show that the Veteran's bilateral hearing loss had its onset within one year of service. As discussed above, because of the Veteran's failure to cooperate in the two most recent VA examinations, the Board finds that VA was unable to develop potentially favorable evidence of the etiology of the claimed bilateral hearing loss disability. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not always a one-way street, or a blind alley, and that a veteran must be prepared to cooperate with VA's efforts to provide an adequate medical examination and submit all the medical evidence supporting the claim). In light of the consistent reports of the Veteran's failure to cooperate and reliably participate in the VA audiology examinations, the Board finds that a new VA examination is not warranted, and the matter will be decided based on the medical evidence of record. The Board finds the July 2014 VA audiologists opinion persuasive because it summarizes and compares the audiograms contained in the service treatment records, and also provides a thorough rationale. The examiner's explanation emphasizes that the Veteran had essentially normal hearing at the time of enlistment and later in 1981. Moreover, the examiner referenced medical literature to explain that permanent hearing loss developed long after noise exposure was unlikely. The Board has considered the Veteran's lay statements relating his current bilateral hearing loss to active service. Specifically, the Veteran reported in an April 2014 VA Form 4138, that his bilateral hearing loss is due to an inservice incident where he hit his left ear on a truck. The Board acknowledges that the Veteran himself has claimed his bilateral hearing loss is directly related to his active service. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., difficulty hearing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, his lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, a preponderance of the evidence is against finding that the Veteran's bilateral hearing loss was incurred during active service, nor did a sensorineural hearing loss disability manifest to a compensable degree within a year following discharge. The preponderance of the evidence demonstrates the Veteran did not experience continuity of symptomatology, and it is less likely than not any current bilateral hearing loss disability is attributable to active service. Thus, the claim for entitlement to service connection for bilateral hearing loss is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the more probative evidence preponderates against entitlement to service connection, the doctrine does not apply. See 38 U.S.C. § 5107. 2. Entitlement to service connection for tinnitus The Veteran contends that his bilateral tinnitus is attributable to his active military service. The Veteran's service treatment records are silent as to any complaints of or treatment for tinnitus. On VA examination in July 2014, it was noted that the Veteran served in the National Guard from 1978 to 1994. A line of duty report dated in August 1982, shows that the Veteran hit his left ear when falling off a truck. The left ear was painful and experienced drainage. However, his National Guard records do not show any complaints related to hearing loss or tinnitus. The Veteran was afforded a VA examination in July 2014. At the time of the examination, a diagnosis of bilateral tinnitus was confirmed. The examiner opined that the Veteran's tinnitus was less likely than not incurred or caused by the Veteran's active military service. In support of this conclusion, the examiner explained that the etiology of tinnitus during active service could not be determined with reasonable certainty based on the available evidence in the record or scientific knowledge. Specifically, the examiner found that there was not a shift in hearing from the time of enlistment to the time of separation that is consistent with reported tinnitus. Rather, the examiner observed that the reported tinnitus was likely related to the post-military events that caused the current hearing loss, as tinnitus is known to be a symptom of hearing loss. Further, the examiner noted that the Veteran reported that the tinnitus started after separation. The Veteran was afforded additional VA examinations in September 2019 and in August 2021 in connection with his claim. At both examinations, the Veteran reported intermittent recurrent tinnitus. However, neither examiner was able to render an etiological opinion due to the Veteran's inaccurate responses to testing. At the examination, the Veteran himself stated that his tinnitus had its onset approximately 4-5 years prior to the examination, approximately 39 years post-service. Moreover, in an October 2021 VA addendum opinion, the examiner explained that the most recent audiological testing was unsuccessful due to a lack of cooperation from the Veteran. In light of the Veteran's lack of cooperation at the time of the two most recent VA examinations, the Board finds that a new VA examination is not warranted to determine the nature and etiology of the Veteran's claimed tinnitus. In particular, the Board emphasizes that the Veteran's participation was required for the VA to fully develop potentially favorable evidence in support of his claim, which cooperation was withheld by the Veteran. See Wood, supra, 1 Vet. App. at 193. As stated at the beginning of this decision, certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree, usually within one year. "Organic diseases of the nervous system" are included among chronic diseases. VA considers tinnitus and hearing loss to be an organic disease of the nervous system. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309. However, the record gives no indication whatsoever of the manifestation of tinnitus in complaints, treatment or diagnoses within a year of separation from service. Indeed, based on the Veteran's own lay reports, the Veteran's tinnitus did not have its onset until approximately 39 years post-service. Consequently, the presumption of service connection for tinnitus as a chronic disease is not available to the Veteran. Additionally, because tinnitus was never identified in-service, it is impossible to establish continuity of symptomatology following upon service, nor does the subsequent record reflect this. The Board notes that lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, as noted above, the Veteran himself has stated that his tinnitus did not have its onset in service, or within one year of service, and continue since that time. Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the medical evidence when there are contradictory findings or statements inconsistent with the record and it must rely on clinical findings and opinions to establish the connection of the Veteran's current disabilities to service-related events, injuries or illnesses. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Based on the findings and opinion of the July 2014 VA examiner and the record as a whole, the Board finds that the Veteran's tinnitus is not caused by an event, disease or injury in active military service, is not etiologically related to service and it did not manifest within one year of separation from service, making the presumption of service connection as a chronic disease inapplicable. Because the Veteran was noted to have fully participated in the July 2014 VA examination, the Board finds the findings and opinion of the July 2014 VA examiner highly probative. In light of the above, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. MARTHA L. TIERNEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.