Citation Nr: A21020040 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200805-92314 DATE: December 15, 2021 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a hearing loss disability of the left ear is denied. Entitlement to service connection for a hearing loss disability of the right ear is denied. FINDINGS OF FACT 1. The Veteran's tinnitus was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's hearing loss disability of left ear was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The evidence of record does not establish the Veteran's preexisting hearing loss of the right ear was aggravated beyond its natural progression by his active duty service. 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 (2020). 2. The criteria for entitlement to service connection for a hearing loss disability of left ear have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for entitlement to service connection for a hearing loss disability of the right ear have not been met. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) which determined that new and relevant evidence had been received to readjudicate a previously denied claim of service connection for bilateral hearing loss and tinnitus. In the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected to appeal the issues listed above and requested a hearing before the Board and an opportunity to submit evidence. This restricts the Board's review to the evidence of record at the time of the April 2020rating decision on appeal and evidence submitted with, or within 90 days of the Veteran's hearing before a Veterans Law Judge (VLJ). 38 C.F.R. § 20.302 (2020). The Veteran appeared at a hearing before a VLJ in July 2021. A transcript of the hearing has been associated with the Veteran's VA claims file. During the hearing, the Veteran raised a motion to advance on docket due to his age. Accordingly, the VLJ presiding at the hearing granted the Veteran's motion and advanced the appeal on the Board's docket pursuant to 38 C.F.R. § 20.902(c)(1) (2020); 38 U.S.C. § 7107(a)(2). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss and tinnitus, which manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38 U.S.C. §§ 1101(3), 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the term "chronic disease" is defined in C.F.R. § 3.309(a), the Court of Appeals for Veterans Claims (Court) has clarified that the list of chronic diseases in 38 C.F.R. § 3.309(a) also "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease [] of the nervous system.'" Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Entitlement to service connection for tinnitus and a hearing loss disability of the left ear. The Veteran contends that he experiences hearing loss and tinnitus as a result of service. Specifically, he asserts that his military occupational specialty (MOS) as a Helicopter Mechanist exposed him to constant hazardous noise. The question for the Board is whether the Veteran has a chronic disability that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. In the April 2020 rating decision, the RO made several favorable findings. The RO found that the Veteran had been diagnosed with a hearing loss disability. See VA examination dated November 2019 showing a diagnosis of bilateral sensorineural hearing loss. The RO also found that the Veteran had in service noise exposure based on his military occupational specialty (MOS) of a helicopter mechanic. These favorable findings are binding on the Board and will not be disturbed. Therefore, the remaining inquiry in this case is whether a causal relationship or nexus exists between the Veteran's conceded in-service noise exposure and any currently diagnosed disability. The Board notes that the 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 v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran's STRs do not document any complaints, treatment, or findings related to hearing loss or tinnitus. On March 1966 entrance examination, audiometer tests were performed but no diagnosis provided. Clinical evaluation of the ears was normal. In a related report of medical history, the Veteran marked "no" to ear, nose, or throat trouble; and "no" to running ears. On May 1968 separation examination, audiometer tests were performed, but hearing loss and tinnitus were not identified. Clinical evaluation of the ears was again normal. In the report of medical history, the Veteran again marked "no" to ear, nose, or throat trouble; and "no" to running ears. The Veteran reported that he has not sought any post-service treatment for his hearing loss or tinnitus conditions. See June 2013 VA Form 21-4138, Statement in Support of Claim. The first objective evidence of hearing loss and tinnitus is reflected in the August 2010 VA examination report when diagnoses were provided. After review of the record, the VA audiologist opined that the Veteran's hearing disabilities were less likely than not due to his service because audiometric testing during service was within normal limits and contained no supporting evidence of tinnitus. The Veteran submitted letters from a private physician in October 2021 and November 2019, who opined that the Veteran's bilateral hearing loss and tinnitus are due to noise exposure while riding in a helicopter without proper noise protection. The physician noted that the Veteran was a flight engineer for a CH-47 helicopter during service. The physician did not provide rationale for his opinion that the Veteran's hearing loss and tinnitus are related to service. The physician did not note that the Veteran's STRs were reviewed. In a November 2019 VA examination, an audiologist opined that the Veteran's left hearing loss and tinnitus are less likely as not related to his military noise exposure. As rationale, the audiologist referenced the Veteran's separation examination showing hearing within normal limits. Medical literature and animal studies indicating that delayed hearing loss is unlikely were referenced. The audiologist noted that "in the absence of a noise induce hearing loss and/or documentation of tinnitus in the [V]eteran's service medical records, the etiology of any reported tinnitus does not appear to be related to acoustic trauma during military service." The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the August 2010 and the November 2019 VA opinions were provided by VA medical professionals who possess the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinions were also shown to have been based on a review of the Veteran's contentions, record, and were accompanied by a sufficient explanation as to why the Veteran's hearing loss and tinnitus disabilities are not related to service. The VA examiners acknowledged review of the claims file, including the Veteran's contentions. The Board is satisfied with the VA opinions and thus affords them probative weight. Although the private audiologist provided a favorable medical opinion on the relationship between the Veteran's hearing loss and tinnitus and service, the Board assigns this decision no probative weight as no rationale was provided for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges lay statements submitted by the Veteran and his acquaintance regarding his current hearing loss and tinnitus are related to in-service noise exposure. However, an opinion regarding the etiology of audiological disabilities is complex and generally beyond the competency of a lay witness. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence does not reflect, nor has the Veteran alleged, that they have any medical education, experience, or training; nor has they offered any basis in common lay knowledge to support their opinion. Therefore, the lay statements submitted by the Veteran and his acquaintance in this regard are not considered more persuasive than the VA opinions. In summary, while the evidence of record shows the Veteran has current left ear hearing loss and tinnitus disabilities, the probative evidence of record demonstrates that such is not related to his service. Indeed, as noted, a demonstrable hearing impairment was not documented by audio tests conducted during service, or for many years after service, and medical professionals have opined that the Veteran's left ear sensorineural hearing loss and tinnitus are not likely due to his military noise exposure or head trauma. Moreover, the clinical evidence of record fails to show that left ear hearing loss manifested until August 2010, more than 40 years after discharge from active duty. As for tinnitus, the Veteran contends that he experienced onset during service, but that he assumed it would go away. See July 2021 Hearing Transcript; see also June 2013 VA Form 21-4138, Statement in Support of Claim. Upon review of the record, the Board finds such statements not credible because the Veteran underwent an audiometric examination at the time of his separation from service and tinnitus was not noted in the separation report. Instead, the Veteran was given an H1 profile indicating normal hearing. If the Veteran had been experiencing ringing in his ears, such would have been documented when the Veteran was examined at the time of his separation. Thus, based on this evidence, the Board finds that the Veteran's statements of an onset during service, and any contention of ongoing tinnitus symptomology, are not credible. Consequently, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that during the hearing, the Veteran's representative appeared to allege clear and unmistakable error (CUE) in the Board's December 2013 decision in which the Board denied service connection for bilateral hearing loss and tinnitus. A final decision by the Board is subject to revision on the grounds of CUE. However, the moving party must advance arguments that allege CUE with the requisite clarity and specificity, as well as submit a motion that is consistent with the procedural requirements of 38 C.F.R. § 20.1404. See Disabled American Veterans v. Gober, 234 F.3d 682, 698-99 (Fed. Cir. 2000). Accordingly, as the Veteran's left ear hearing loss and tinnitus are not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest to a compensable degree within one year of the Veteran's discharge from service, service connection is not warranted. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable, and the claims are denied. Entitlement to service connection for a hearing loss disability of the right ear. As noted above, for VA compensation purposes, hearing impairment is considered a disability when: (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels (dB) or greater; (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or (3) the speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. A veteran is presumed to have been in sound condition when "examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service." 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Pursuant to 38 C.F.R. § 3.304(b), only those conditions recorded in examination reports can be considered as "noted," and a history of preservice existence of conditions recorded at the time of examination does not constitute notation of such conditions. A review of STRs reveals that at the time of the Veteran's March 1966 enlistment, an audiometer revealed auditory thresholds of 15, 15, 20, 50 dB at frequencies of 500, 1,000, 2,000, and 4,000 Hz in the right ear. Under VA regulations, the Veteran did have a hearing impairment of the right ear at entrance, although a hearing loss condition was not noted. As such, the presumption of soundness does not attach, and service connection may only be granted on the basis of aggravation in service. A preexisting injury or disease will be presumed to have been aggravated in service where there is an increase in disability during such service, unless there is a specific finding the increase in disability was due to the natural progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a); Hunt v. Derwinski, 1 Vet. App. 292 (1991). However, in order to avail themselves of this presumption of aggravation, initially, the burden is on the veteran to establish an increase in severity in service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the veteran is able to demonstrate an increase in severity in service, then the presumption of aggravation attaches and the burden shifts to VA to rebut the presumption by clear and unmistakable evidence that the worsening of the preexisting condition was due to its natural progression. Id.; see also 38 C.F.R. § 3.306(b). In view of the above, the next question for the Board is whether the Veteran has established an increase in severity in service of his preexisting hearing loss disability of the right ear. During his time in service, a review of the Veteran's STRs discloses that he did not complain of right ear pain or hearing loss of the right ear. At the time of the Veteran's May 1968 separation examination, audiometric testing produced the following results: HERTZ 500 1000 2000 4000 RIGHT 15 15 15 15 The Board notes the Veteran's auditory thresholds at the 500 and 1000 Hz frequencies remained the same as those following the March 1966 enlistment examination. However, the Veteran's auditory thresholds at the 2000 and 4000 Hz frequencies showed a notable improvement from his enlistment examination in March 1966. In the corresponding May 1968 Report of Medical History, the Veteran denied ear, nose and throat trouble. Further, he denied running ears and hearing loss. In furtherance of this claim, the Veteran has been afforded one VA examination in November 2019. Audiometric testing at that time returned the following results: HERTZ 500 1000 2000 4000 RIGHT 20 55 90 90 These results confirmed he had a current hearing loss disability of the right ear and showed that his auditory thresholds were worse at each relevant Hz frequency for VA compensation purposes; 500, 1000, 2000 and 4000 Hz frequencies. The VA examiner provided a negative nexus opinion on the relationship between the Veteran's current right ear hearing loss and service. For the right ear, the audiologist referenced a March 1966 entrance examination showing a threshold of 50 dB at 4000 Hz in the right ear and concluded that the Veteran had a preexisting right ear hearing loss disability. The audiologist opined that the Veteran's preexisting right ear hearing loss was not aggravated beyond normal progression during service. The audiologist noted that "[t]he veteran's entrance exam revealed a moderate high frequency hearing loss at 4kHz in the right ear; however, the veteran's exit exam revealed hearing within normal limits." The August 2010 VA examiner noted that "[t]he entrance audiogram indication [of] a preexisting 4,000 cycle notching on the right ear was not evidence on discharge with normal audiogram across all frequencies." Considering the above, the Board finds the Veteran has not established an in-service increase in severity of his preexisting hearing loss disability of the right ear. The Board finds the presumption of aggravation does not attach. As such, the burden does not shift to VA to rebut the presumption of aggravation with clear and unmistakable evidence. Accordingly, service connection due to aggravation of the Veteran's preexisting hearing loss of the right ear must be denied. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.