Citation Nr: A21019934 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 191125-49968 DATE: December 14, 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 Veteran's bilateral hearing loss is not incurred in or aggravated by the Veteran's active service. 2. The Veteran's tinnitus is not caused by, due to, or otherwise related to in-service trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1111, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force (USAF) from September 1960 to June 1964. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) June 2019 rating decision of the Agency of Original Jurisdiction (AOJ). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). The AMA became effective on February 19, 2019. Under AMA, an AMA appeal may come to the Board in three ways: (1) through a Rapid Appeals Modernization Program (RAMP) rating decision; (2) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or (3) an appeal of a SOC or supplemental statement of the case issued on or after February 19, 2019. In his November 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. The Veteran did not appear for the scheduled Board hearing. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran [or his representative] within 90 days following the date of the scheduled hearing. 38 C.F.R. § 20.302(c). The Board notes that simultaneously to filing his VA Form 10182, the Veteran also submitted a hand-written letter with evidence relating to in-service acoustic trauma. As noted above, as this evidence was not before the AOJ at the time of appeal, nor was it submitted to the Board within 90 days after the date of his scheduled Board hearing, the Board is unable to consider his evidence. The AOJ is requested to provide the Veteran and his representative with the necessary instructions on filing a Supplemental Claim. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss was caused by his military service. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to compensation for a current disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, such as organic diseases of the nervous system (including sensorineural hearing loss and tinnitus), if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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, or 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 threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. at 157. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability (1) existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); VAOPGCPREC 3-2003. Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association ASA). Since November 1, 1967, those standards have been set by the International Standards Organization American National Standards Institute (ISO-ANSI). In order to facilitate data comparison for VA purposes, ASA standards noted in service medical records dated prior to November 1,1967 must be converted to ISO-ANSI standards. Such conversion requires the following amounts be added to the recorded ASA audiological results: 15 at 500 Hz, 10 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz, and 5 at 4000 Hz. The Board notes that the Veteran's in-service medical records show evidence of hearing loss. At his September 7, 1960 enlistment examination, the Veteran's hearing was reported to be 15/15 for whispered voice in both ears. Audiometry testing was not reported. However, several days after his enlistment examination, on September 19, 1960, the Veteran was seen for an audiometric examination, the results, including conversion from ASA units to ISO-ANSI units in parentheses, were as follows: HERTZ 500 1000 2000 3000 4000 CNC Right -5 (10) -5 (5) 20 (30) 40 (50) 35 (40) N/A Left -5 (10) -5 (5) 25 (35) 45 (55) 35 (40) N/A Based on the findings, as of September 19, 1960, the Veteran displayed high frequency hearing loss in both ears to a degree that met the disability requirements set out by § 3.385. An August 1962 audiogram had the following results: HERTZ 500 1000 2000 3000 4000 CNC Right -5 (10) 0 (10) 20 (30) 40 (50) 35 (40) N/A Left 0 (15) -5 (5) 20 (30) 40 (50) 50 (55) N/A As several thresholds were measured at 40dB or more, the Veteran meets VA requirements for hearing loss per § 3.385. The findings at his 1964 separation examination show the following results: HERTZ 500 1000 2000 3000 4000 CNC Right 0 (15) 0 (10) 20 (30) 45 (55) 40 (45) N/A Left 5 (20) 0 (10) 20 (30) 25 (35) 45 (50) N/A Post-service medical records show that the Veteran received treatment for diminished hearing. In August 2017, an audiological consult note showed "mild sloping to severe [ sensorineural hearing loss] starting at 1000Hz" in both of his ears, with Maryland CNC scores of 88 percent in his right ear and 68 percent in his left. The audiologist noted that while the Veteran was exposed to "flight operations without hearing protection" while on active duty, he did not render an opinion on the etiology of the Veteran's hearing loss. An audiogram done in August 2017 showed that the Veteran had hearing loss for VA purposes in both ears: HERTZ 500 1000 2000 3000 4000 CNC Right 20 30 75 65 65 N/A Left 25 25 75 75 80 N/A In June 2019 a VA examiner conducted an audiometric examination of the Veteran and provided an etiological opinion regarding the Veteran's hearing disability. The results of the examination are as follows: HERTZ 500 1000 2000 3000 4000 CNC Right 25 30 75 70 80 88% Left 25 30 80 80 85 74% As with the Veteran's prior examinations, including the ones in service, the evidence shows that he has hearing loss for VA purposes. 38 C.F.R. § 3.385. However, the examiner found that the Veteran's hearing loss is less likely than not due to his active-duty service. The examiner specifically noted that the Veteran's enlistment examination was a whisper test (which, notably, is insufficient for rating purposes), but the follow-up audiogram showed hearing loss that likely pre-dated his military service. This is based on the fact that there "is no evidence to support a sudden and significant loss [of hearing]" during the Veteran's first several weeks of military service. The examiner found no evidence of damage to the Veteran's ears or acoustic trauma in the STRs, "especially in the early part of his service." The examiner also found no significant permanent shift in hearing in hearing thresholds greater than normal measurement variability from the September 1960 audiogram. Continuing, the examiner concluded that "without further evidence" it is "less likely than not" that the Veteran's hearing loss is due to, or caused by, his in-service acoustic trauma. The Board finds based on the evidence of record including the non-diagnostic whispered voice testing on enlistment, the measurable hearing loss shown 12 days after the enlistment examination, and the absence of a significant permanent shift in hearing in hearing thresholds greater than normal measurement variability from the September 1960 audiogram, the Board concludes that there is clear and unmistakable evidence that the Veteran's hearing loss preexisted his military service. As the medical evidence shows that the Veteran's bilateral hearing loss existed prior to his military service, the Board must also determine whether there is clear and unmistakable evidence that the preexisting hearing loss was not aggravated by service. In this regard, the Board also find that there is such evidence, and thus, the presumption of soundness on entrance has been rebutted. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As noted, the examiner also noted that there was no "significant [threshold] shift" from the Veteran's audiogram conducted shortly after his enlistment to the one conducted at his separation examination, which in turn shows that there has been no in-service worsening or aggravation of his condition. The Board finds that the probative medical evidence shows that the Veteran's currently diagnosed bilateral hearing loss is not caused by, or due to, his active-duty military service. Furthermore, the evidence shows that the Veteran's bilateral hearing loss predates his active-duty service, and was not otherwise aggravated by his time in the military. Therefore, the presumptions of soundness and aggravation are rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The Board finds that this conclusion encompasses the one-year period following separation from service and thus, the chronic disease presumptions would not result in a favorable disposition. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran's claim for entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is related to service. Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. §§ 3.307 (a)(3). The Board considers tinnitus to be an organic disease of the nervous system, and is therefore included in the chronic diseases listed under 38 C.F.R. § 3.309 (a). Cromley v. Brown, 7 Vet. App. 376, 378 (1995), Fountain v. McDonald, 27 Vet. App. 258 (2015). If a listed chronic disease is not manifested within the applicable presumptive period, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran has a current diagnosis of tinnitus, and that his duties while serving in the USAF involved driving trucks and being on the flight line without hearing protection. As such, the first two Shedden elements necessary to establish service connection have been met. What is left for the Board to determine is whether the Veteran's tinnitus is due to the Veteran's in-service acoustic trauma. As noted above, in June 2019 the Veteran was seen for a VA audiometric examination. The examiner concluded that the Veteran's tinnitus was less likely than not due to his active-duty military service. The examiner opined that as the Veteran did not complain of tinnitus during service or at separation, it was more likely that the "naturally[sic] aging process, genetic/medical conditions, and life experiences may contribute to the onset of tinnitus without the exposure to noise." The Board finds that the probative medical evidence shows that the Veteran's currently diagnosed tinnitus is not caused by, or due to, his active-duty military service. The Veteran's claim for entitlement to service connection for tinnitus is denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.