Citation Nr: A21020359 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 211013-191247 DATE: December 21, 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 establishes that the Veteran's bilateral hearing loss was not incurred in, or otherwise related to, his in-service noise exposure and did not manifest to a compensable degree within one year of service separation. 2. The preponderance of the evidence establishes that the Veteran's tinnitus was not incurred in, or otherwise related to, his in-service noise exposure and did not manifest to a compensable degree within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had served on active duty from September 1955 to September 1957. In March 2021 he submitted a claim for service connection for bilateral hearing loss and tinnitus. In a June 2021 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bilateral hearing loss and tinnitus. The Appeals Modernization Act (AMA) creates a new framework for claimants dissatisfied with VA's decision on their claims to seek review. The AMA became effective on February 19, 2019. It applies to all claims for which VA issues a notice of an initial decision on or after that effective date. 38 C.F.R. § 3.2400(a)(1). The AMA applies to the Veteran's claims. In September 2021 the Veteran submitted a Supplemental Claim for service connection for bilateral hearing loss and tinnitus. He submitted additional evidence. In a September 2021 rating decision, the RO confirmed and continued the previous denials of service connection for bilateral hearing loss and tinnitus. In September 2021 the Veteran submitted an AMA notice of disagreement (NOD) to appeal those denials to the Board. He chose the Board Review Option of Direct Review by a Veterans Law Judge. The Board will consider the evidence that was of record at the time of the September 2021 rating decision. Under the AMA, the Board is bound by favorable findings by the Agency of Original Jurisdiction (AOJ) (in this case the RO). 1. Bilateral hearing loss 2. Tinnitus The Veteran contends that noise exposure during his service caused his bilateral hearing loss and tinnitus. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Court has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of a veteran's separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. The Veteran's service treatment records (STRs) include reports of a September 1955 entrance examination and a September 1957 separation examination. On the entrance examination, the Veteran's hearing was measured as 15/15 in each ear on the whispered voice test, which is normal (see Smith v. Derwinski, 2 Vet. App. 137 (1992), and 15/15 in each ear on the spoken voice test. On the separation examination, his hearing was measured as 15/15 in each ear using the whispered voice test. His STRs do not contain audiometric testing. The available evidence does not address whether there were any shifts in auditory thresholds during his service. In 2011 the Veteran initiated treatment at a VA facility. In March 2012, he requested hearing tests. He stated that in service he was a mortarman and was exposed to loud noises. In a VA audiology consultation in April 2012, the Veteran reported that, for the past 20 years he had noticed difficulty hearing parts of words in conversations. He stated that his wife complained that he needed the television volume too loud. He recalled that, as a mortarman in service, he had to listen for commands, so he did not wear hearing protection, but only covered his ears when the mortars fired. He stated that after service he worked as a carpenter and was exposed to electric saws, nail guns, routers, and sanders, without hearing protection. He related that he also hunted and frequently went to a firing range, each without wearing hearing protection. The 2012 testing showed hearing impairment in both ears that was asymmetrical. The audiologist recommended hearing aids. Due to the asymmetry, the audiologist referred the Veteran for an otolaryngology consultation. In a May 2012 VA otolaryngology consultation, the physician did not find any ear, nose, or throat disorder. The Veteran reported noise exposure during service and after service. The Veteran denied tinnitus. In July 2012 the VA audiologist fitted the Veteran with hearing aids. In VA primary care in September 2016, the Veteran reported decreased hearing and some tinnitus, described as longstanding. In an audiology visit in April 2018, testing showed worsening bilateral sensorineural hearing loss, worse in the left ear. The audiologist opined that the present threshold changes likely were age related, as the previous examination was six years earlier. In May 2018 the Veteran had hearing aid programming and reorientation. In a VA audiology reevaluation in December 2019, the Veteran reported further gradual decline in his hearing since the 2018 testing. In February 2020 he was fitted for new hearing aids. In March 2021 the Veteran had private audiometric testing at Camino Ear, Nose & Throat Clinic. At that time the Veteran reported bilateral hearing loss and tinnitus. Tests showed bilateral hearing loss. On VA examination in May 2021, the Veteran reported exposure in service to mortar explosions, without hearing protection. He stated that after service he worked installing cabinets and building houses. He stated that he was exposed to noise from power tools and other machinery and that he wore hearing protection consistently. He stated that he did target shooting and used hearing protection. The Veteran reported hearing difficulty as shown by needing excessive volume for television and asking for repeats in conversation. He also reported constant bilateral tinnitus. He expressed that he was not sure when he noticed the hearing loss symptoms, but he thought it was about 25-30 years ago. He indicated that he had experienced tinnitus for a long time, but that it really started bothering him once he retired and his life was quieter. The examiner reviewed the claims file. Testing showed bilateral sensorineural hearing loss. The examiner noted that only voice testing was used during the Veteran's service. The examiner stated that the service test results were recorded as normal, but that voice testing was an invalid measure of high frequency hearing. The examiner noted that the Veteran was exposed to significant military noise during service but was also exposed to significant occupational noise over many years and recreational shooting noise after service. In other words, the Veteran's post-service noise exposure was more extensive than his exposure during active service. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination). The examiner noted that the Veteran reported noticing hearing difficulty 25 to 30 years before the 2021 examination, which was about 30 years after his service. She noted that he specifically denied tinnitus in 2012 and that the first complaint of tinnitus was in 2016. The examiner expressed the opinion that the Veteran's hearing loss and tinnitus was less likely than not caused by or a result of acoustic trauma during service. In August 2021, otolaryngologist M. S. C., M.D., of Camino Ear, Nose & Throat Clinic wrote that she reviewed the Veteran's medical history, including audiometric testing. Dr. C. stated that she had treated him since March 2021. She reported that he had severe high frequency bilateral sensorineural hearing loss and tinnitus. Dr. C. expressed the opinion that these conditions were more than likely a result of events during his military service. The RO made favorable findings that in May 2021 the Veteran was diagnosed with bilateral hearing loss and tinnitus. Existence of a current disability is established. The RO also made a favorable finding that the Veteran was exposed to noise during his service. Noise exposure during service is thus conceded. The service connection claim turns on whether there is a nexus between his noise exposure in service and his currently diagnosed bilateral hearing loss and tinnitus. The Veteran's estimate as to when he began to notice difficulty hearing was as early as the 1980s, more than 20 years after his service. His 2021 report of a long history of tinnitus is not specific regarding the onset of his tinnitus. He did not indicate whether or not he experienced tinnitus with his noise exposure in service. However, his denial of tinnitus in a 2012 treatment visit for ear issues works against a finding of onset during service and continuing thereafter. The VA examiner's negative nexus opinion considered the Veteran's history, to include his post-service noise exposure. Dr. C.'s opinion does not include any explanation or discussion of the Veteran's noise exposure after service. The Board gives the VA examiner's opinion more probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) ("a medical opinion must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions"). The Board adds that there is no evidence of record to suggest that the Veteran's bilateral hearing loss or tinnitus manifested to a degree of 10 percent within one year of separation from service. (Continued on the next page) The Board acknowledges the Veteran's contention that both conditions are related to his in-service noise exposure. While the Veteran is competent to report his in-service noise exposure, which has already been conceded, he is not competent to opine on complex medical questions such as the etiology of his current bilateral hearing loss or tinnitus. The greater persuasive weight of the evidence is against a nexus between the Veteran's noise exposure in service and his bilateral hearing loss and tinnitus. The Board therefore denies service connection for both claims. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.