Citation Nr: 21005637 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-19 768 DATE: February 2, 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 finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury, or disease. 2. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to January 1977. These matters come before the Board of Veterans' Affairs (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in January 2019. A transcript of the hearing is in the Veteran’s file. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship 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). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including other organic diseases of the nervous system, which includes sensorineural hearing loss and tinnitus, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from bilateral hearing loss that is the result of noise exposure during military service. The Veteran testified at the January 2019 Board hearing that he began noticing problems with hearing loss a couple of years after service, when he started to ask his wife to repeat herself. In service, he did construction jobs and played war games in the desert and was exposed to explosives and gunfire as part of his daily duties. The Veteran’s post service employment included management and materials which included loud noises, but the Veteran contends he used earplugs for protection. A review of the Veteran’s service personnel records shows that his military occupational specialty (MOS) was a combat engineer and he was awarded the marksman rifle badge. The Board finds the Veteran is credible in describing his exposure to the noise in service. VA examinations and treatment records also confirm the Veteran has bilateral hearing loss for VA purposes. Thus, the question remaining for the Board is whether his hearing loss is related to his military service. Service treatment records (STRs) are silent for any complaints, diagnosis, or treatment of hearing loss. A review of the Veteran’s STRs show that he was provided audiograms at enlistment in January 1975 and exit in January 1977. All of the reported thresholds at entry and separation were within normal limits bilaterally. Moreover, the shifts in auditory thresholds during that time showed improvement in hearing. In his Notice of Disagreement, the Veteran contends he reported a change in hearing at discharge but claims nothing was done about it. The Veteran’s separation examination, however, does not include any complaints of hearing loss. The Veteran was afforded a VA examination in January 2013. The examiner did not consider the puretone threshold average to be valid, because it was not in agreement with other tests (speech reception threshold and bone conduction test), but nevertheless offered an opinion that current hearing loss was unrelated to service. This was based in large part on the record showing there was normal hearing at separation from service. Normal hearing at separation was significant because medical research showed that hearing loss due to acoustic trauma (the contention here) is immediate. Although probative, since it explained the reasons for the conclusion expressed and contemplates both medical research and the Veteran’s service history, because test results were not provided, and it was unclear what the examiner understood to be the Veteran’s post service noise exposure history, it would not be considered dispositive. The Veteran submitted a private audiogram from Sam’s Club performed by an audiologist in March 2019, which showed the Veteran had bilateral sensorineural hearing loss. The audiologist noted there was a history of noise exposure in the military as a combat engineer working with explosives and opined that his military noise exposure more than likely contributed to his hearing loss in both ears. The Veteran also submitted a private evaluation by a hearing instrument specialist at Natural Hearing Centers in January 2020. The specialist stated she performed a thorough hearing evaluation and found the Veteran’s bilateral hearing loss with tinnitus is more likely than not a result of being around loud noises with his job in the military. For both private opinions, the Board notes there was no rationale for the conclusions. There was no indication the audiologist and hearing specialist reviewed service treatment records, there was no discussion of the lack of significant threshold shifts in service, including why the Veteran’s discharge examination showed an improvement, and no discussion of the impact of post-service occupational noise exposure. They also did not cite to any particular facts or medical research to support their opinions. Accordingly, the private opinions are given little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran was afforded another VA examination in January 2020. The Veteran reported that he was around small tractors and chainsaws before military service while growing up on his family farm without the use of hearing protection. During military he was exposed to aircrafts, helicopters, jets, tanks, explosives and weapons fire and he did not use hearing protection at all times. Post-military occupational noise included working as a construction materials management supervisor for 35 years, with exposure to heavy equipment and dump trucks without the use of hearing protection at all times. Post military recreational noise includes seasonal lawn equipment with hearing protection and hunting on two occasions without the use of hearing protection. Pure tone thresholds showed bilateral hearing loss for VA purposes. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 94 in the left ear. The examiner opined that the Veteran’s bilateral hearing loss is less likely than not due to military service. The examiner noted there were no significant permanent shifts in hearing thresholds from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. Additionally, the Veteran was exposed to intense levels of occupational noise for 35 years following his service in the military without consistent use of hearing protection. The examiner found that due to his post military noise exposure, in addition to his advancing age, normal finding in both ears at separation, and the absence of significant threshold shifts during service, it is less likely than not that the Veteran’s bilateral hearing loss was caused by military noise exposure. The Board places high probative value on the VA examiner’s opinion as it explains the examiner’s conclusion with consideration of the Veteran’s complete history. While the Veteran believes his hearing loss is related to in-service noise exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education, which the Veteran has not demonstrated. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence in this case. Although disabilities of the nervous system, including hearing loss, are subject to presumptive service connection; service connection would not be warranted unless the hearing loss manifested to a compensable degree within a year of the Veteran’s release from active service in January 1977, or if he exhibited a continuity of symptomatology since that time. In this case, the Veteran is inconsistent with respect to when his hearing loss began, claiming at some points to have been in service, and other times after service. Thus, his history is not a reliable indicator for when the disability had its onset. In these circumstances it is not reasonable to conclude it was present to a degree of 10 percent within the first post service year, or that there has been a continuity of symptoms since service. Therefore, hearing loss may not be presumed to have been incurred in service. In this case then, the Board finds the most probative evidence to be the VA examiners’ opinions which taken together explain why the Veteran’s hearing loss is unlikely related to his service noise exposure. They explain hearing loss due to acoustic trauma is seen contemporaneous with the trauma. As the Veteran did not exhibit hearing loss at service separation, his in-service noise exposure did not produce his current disability. Accordingly, the Board finds that the weight of the evidence is against the claim for service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus The Veteran contends his tinnitus is due to noise exposure in service. The January 2020 VA examination reflects a diagnosis of tinnitus and noise exposure in-service has been conceded. Thus, the first two requirement to establish service connection has been met. The Board, however, finds that the record does not contain evidence linking the Veteran’s current tinnitus to noise exposure during service. Service treatment records are silent for any complaints of tinnitus. At the January 2013 VA examination, the Veteran reported his tinnitus began while in the Marines in January 1977. In his March 2013 Notice of Disagreement, the Veteran stated he was told at discharge he had hearing loss and he reported that his ears had been ringing for quite some time before that. At the Board hearing, the Veteran testified that ringing in the years began at the same time as his hearing loss, i.e. a couple years after service. At the January 2020 VA examination, the Veteran reported his tinnitus started either 10 or 20 years ago and that it did not occur during military. Here, the Veteran has compromised his credibility given his inconsistent reports of the timing of the onset of his complaints. Any history he reports of his tinnitus in service, or continuity since service is not probative. Based upon his reported onset of symptoms over at least 23 years after service, as well as the absence of reports of tinnitus during service, the 2020 VA examiner found his tinnitus was less likely than not caused by military noise exposure. Given this conclusion is explained, and is based on a reasonable understanding of the Veteran’s history, it is probative. The Veteran also submitted two private hearing loss evaluations. The March 2019 and January 2020 private opinions both found his military noise exposure more likely than not contributed to the ringing in his ears. The private opinions, however, do not provide any rationale for the opinions. They do not discuss the normal hearing at separation, the lack of tinnitus complaints in service, nor do they reflect any inquiry into when the condition began. Accordingly, they are given little probative value. In this case, the probative evidence does not establish the presence of tinnitus in service, its presence to a compensable degree within one year from service discharge, or a continuity of symptomatology since service. Accordingly, it may not be considered to have been incurred in service. The Board finds that the evidence does not demonstrate a nexus between current tinnitus and in-service noise exposure. As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not applicable. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.