Citation Nr: 21005842 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-35 882 DATE: February 2, 2021 ORDER 1. Entitlement to service connection for bilateral hearing loss disability is denied. 2. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss disability did not have its onset during active service, sensorineural hearing loss was not manifest to a compensable degree within one year of service discharge, and the bilateral hearing loss disability is not otherwise related to active service. 2. The Veteran’s tinnitus did not have its onset during active service, was not manifest to a compensable degree within one year of service discharge; and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 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 for the Army Reserves from November 1986 to June 1987 and from February 1991 to August 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a virtual Board hearing held before the undersigned Veterans Law Judge (VLJ) in December 2020. A transcript of the Board hearing has been associated with the claims file. The Veteran has alleged that he has experienced tinnitus and hearing loss since being exposed to a close-range grenade explosion without ear protection during training sometime between his first and second periods of active duty. He described the incident as each person having to throw one grenade. When he threw the grenade, he looked to his right, which exposed his left ear to the sound when the grenade went off, and he could not hear from his left ear for three days. The Veteran testified that he had lost his ear plugs that day, so he was not wearing them at the time of the incident. He has reported difficulty understanding speech, especially when watching television. At the December 2020 hearing, the Veteran denied a hereditary genetic makeup for hearing loss. In general, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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 between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 U.S.C. § 5103(a). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, which are organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the purpose 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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 Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for bilateral hearing loss and tinnitus. The reasons follow. Although the record establishes the presence of current bilateral hearing loss disability and tinnitus, and the exposure to hazardous noise in service, the preponderance of the evidence is against a causal relationship between the present disabilities and service. At the Veteran’s entrance examination in July 1986, normal findings on audiometric testing were documented that did not meet the VA standards for a hearing loss disability in either ear. The Veteran denied a history of hearing loss or ear/nose/or throat trouble. The Veteran’s service treatment records from the first period of service are absent complaints regarding hearing loss and tinnitus. There is no separation examination from the first period of service, but there is a Report of Medical Examination prior to the Veteran’s second period of active duty, which showed a normal clinical evaluation of the ears in August 1990 with normal audiometric testing. On the corresponding Report of Medical History, the Veteran checked the box documenting a history of ear/nose/or throat trouble; however, this was explained as a reference to a childhood tonsillectomy in 1966. The Veteran specifically denied a history of hearing loss and wrote that he was in good health. He again denied a history of hearing loss in a February 1991 Report of Medical History. The service treatment records from the second period of service are absent complaints regarding hearing loss and tinnitus. The Veteran underwent a separation examination in July 1991. He received a normal clinical evaluation of the ears. On audiological testing, the recorded pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 0 0 10 10 10 LEFT 5 5 5 15 15 Despite a notation that the Veteran had routine exposure to hazardous noise, the Veteran’s audiometric testing results did not demonstrate the presence of a bilateral hearing loss disability. On the corresponding Report of Medical History, the Veteran again reported his 1966 tonsillectomy, but specifically denied a history of hearing loss. Thereafter, the record does not contain objective findings of bilateral hearing loss or tinnitus for multiple decades after discharge until the filing of the within claim in 2013. The Veteran underwent a VA audiological examination in December 2013. On audiological testing, the recorded pure tone thresholds, in decibels, and the Maryland CNC results were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Maryland CNC RIGHT 10 15 15 30 45 100% LEFT 10 10 10 45 60 96% These findings meet VA’s definition for a bilateral hearing loss disability, and the Veteran was also diagnosed with bilateral sensorineural hearing loss. Additionally, the Veteran reported experiencing constant tinnitus since his time in service. The examiner explained that due to the subjective nature of tinnitus and lack of diagnostic testing, this finding is sufficient to establish the presence of a current disability. The examiner did not opine as to the etiology of the Veteran’s hearing loss due to the unavailability of certain service treatment records that were not associated with the claims file at the time of the examination (the July 1991 Report of Medical Examination, which included audiometric findings). The examiner stated that the Veteran’s tinnitus was at least as likely as not caused by or a result of military noise exposure. The examiner stated that tinnitus is a subjective complaint that cannot be evaluated objectively and that it is a common symptom resulting from a wide range of possible underlying causes, but that the Veteran did report that it began during service. Additional service treatment records were acquired and associated with the claims file thereafter, including the aforementioned July 1991 separation examination. The Veteran underwent another VA audiological examination in May 2017. The Veteran again reported that his hearing loss began with the reported grenade training incident and that he could not hear for three days afterwards. However, during this examination the Veteran reported that he did not notice tinnitus until sometime after his military service. On audiological testing, the recorded pure tone thresholds, in decibels, and the Maryland CNC results were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Maryland CNC RIGHT 5 15 10 40 45 100% LEFT 10 10 10 60 60 96% The Veteran was again diagnosed with bilateral sensorineural hearing loss. The examiner stated that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of an in-service event, as there was no permanent positive threshold shift when comparing the Veteran’s audiological examination findings from entry into service in 1986 to his separation examination in 1991. The examiner also stated that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. The examiner explained that the Veteran indicated that he did not notice tinnitus until sometime after military service and that no human studies support the theory of delayed-onset tinnitus. Although the Veteran is competent to report his observed symptoms, his credibility is compromised by inconsistent reporting regarding his alleged symptoms. During his separate VA examinations, the Veteran has variably reported that he has experienced constant tinnitus since the grenade training incident during service and that he also did not notice tinnitus until sometime after his military service. The favorable opinion provided by the 2013 VA examiner regarding tinnitus was based entirely on the Veteran’s self-reporting, which we now know to be not fully credible. Additionally, the 2013 examiner was unable to review all of the Veteran’s service treatment records, as the Veteran’s July 1991 separation examination had not yet been included in the claims file, which separation examination, according to the 2017 VA examiner, did not show bilateral hearing loss. The negative opinion of the 2017 VA examiner relating to tinnitus is supported by the Veteran’s treatment records that show no complaints of hearing issues during service, no positive threshold shifts in service, and no hearing loss for multiple decades after service. As such, the findings of the 2017 examiner are most probative relating to service connection for tinnitus. As for bilateral hearing loss disability, the Veteran is not competent to make an etiological conclusion regarding the cause of his observed symptoms relating to an internal physiological process. The Board notes that the Veteran denied a history of hearing loss within the July 1991 Report of Medical History. The 2017 VA examiner is an audiologist, who personally examined the Veteran, reviewed the evidence of record, and provided a reasoned rationale for her conclusions, which are supported by the longitudinal record. The evidence of record does not document a bilateral hearing loss disability or tinnitus until 2013. Accordingly, the findings of the 2017 examiner are more probative than the lay statements of the Veteran. As to presumptive service connection, the preponderance of the evidence is against a showing that the Veteran’s tinnitus or bilateral sensorineural hearing loss was manifested to a compensable degree within one year of separation from active duty. As discussed above, the Veteran’s service treatment records are absent complaints or treatment for bilateral hearing loss or tinnitus, and, in fact, show that the Veteran did not feel he had hearing loss when he was discharged from service in 1991. The record does not establish that the Veteran sought treatment or received a diagnosis of either condition for more than 20 years following separation from service. Thus, service connection on a presumptive basis is not warranted. For all the reasons stated herein, the preponderance of the evidence is against the claims for service connection for bilateral hearing loss disability and tinnitus. As such, the benefit of the doubt doctrine is not for application, and the Veteran’s claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.