Citation Nr: 21006227 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-62 812 DATE: February 3, 2021 ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran has not had right ear hearing loss disability for VA purposes at any time during or approximate to the pendency of the claim. 2. The Veteran’s left ear hearing loss 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, event, or disease. 3. The Veteran’s tinnitus 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, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1101(3), 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309(a); 3.385. 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101(b), 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision. In a December 2018 decision, the Board denied service connection for tinnitus. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a July 2020 order, the Court granted the parties’ Joint Motion for Remand (JMR), vacated the Board’s decision as to the appealed issue, and remanded the matter for further development and readjudication consistent with the JMR. Also, in December 2018, the Board remanded the issue of entitlement to service connection for bilateral hearing loss, and the case has been returned for appellate consideration. In its December 2018 decision/remand, the Board noted that the issues of entitlement to service connection for an eye disability, diabetes mellitus, peripheral neuropathy of the left upper extremity, and peripheral neuropathy of the right upper extremity were stayed pending the resolution of the appeal of Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). See Chairman’s Memorandum No. 01-18-15 (Oct. 22, 2018). The stay was rescinded April 1, 2019, and, in May 2019, the Board remanded those issues for further development, which currently remains ongoing. If, upon completion of this development, the Agency of Original Jurisdiction (AOJ) is unable to favorably resolve those claims, then they will be re-certified to the Board and will be addressed in a separate decision at a later date, if otherwise in order. 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, 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). For certain enumerated chronic diseases, such as organic diseases of the nervous system, which includes sensorineural hearing loss and tinnitus, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining § 3.303(b) to those chronic diseases listed in § 3.309(a)). Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is 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 or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. 38 C.F.R. § 3.307(b). For VA purposes, there are three ways in which an audiological examination can show that hearing loss is disabling: 1) “when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater”; or 2) “when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater”; or 3) “when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385 (2017). “Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 158–60 (1993) (setting out the requirements for establishing service connection for hearing loss). 1. Right Ear Hearing Loss. The Veteran seeks service connection for hearing loss, contending that it is the result of in-service exposure to hazardous noise when he served as an aviation structural mechanic. See November 2014 correspondence. While the Veteran believes he has a current disability of hearing loss, he is not competent to provide a diagnosis in this case because the issue is medically complex, as it requires specialized training and diagnostic testing. 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. The Board concludes that the Veteran does not have a right ear hearing loss disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385; Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In June 2013, the Veteran was afforded a VA examination, during which testing revealed for the right ear a speech discrimination score of 96 percent and pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 25 20 During a December 2019 VA examination, testing revealed for the right ear a speech discrimination score of 100 percent and pure tone thresholds, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 25 25 During both examinations, the Veteran was found to have sensorineural hearing loss in the right ear in the frequency range of 6000 Hertz or higher; he was not found to have sensorineural hearing loss in the frequency range of 500 to 4000 Hertz. As to the right ear, the Board finds that the Veteran does not have a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1996) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board notes that VA medical records show that the Veteran had an audiological consultation in December 2011, during which speech discrimination for the right ear was reported as 92 percent, and a hearing aid was prescribed due to his report of frequent hearing difficulty in various listening environments. The word list used, however, was not recorded, and therefore, this data cannot be used to establish hearing loss for VA purposes. The report also occurred well before the appeal period. The Board does not say that the Veteran does not have reduced hearing acuity; rather, the Veteran does not have a hearing loss disability in the right ear for VA purposes. Accordingly, the first Shedden element is not met, and the claim for service connection for right ear hearing loss fails. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Left Ear Hearing Loss. Based upon the following, the Board concludes that, while the Veteran has left ear hearing loss for VA purposes, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology, nor is it directly related to active duty service. 38 U.S.C. §§ 1101(3), 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). During both the June 2013 and December 2019 VA examinations, testing revealed for the left ear a speech discrimination score of 92 percent. He was found to have sensorineural hearing loss in the frequency range of 500 to 4000 Hertz. Consequently, as to the left ear, the Board finds that the Veteran has a current hearing loss disability, and the first Shedden element is met. The Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was AMS-8309, aviation structural mechanic. In a November 2014 letter, the Veteran stated that, while stationed on an aircraft carrier, he was exposed to an extremely high level of noise due to planes constantly moving. The evidence establishes that the Veteran was exposed to hazardous noise during service, and accordingly, the second Shedden element is met. In an April 2020 informal hearing brief, the Veteran’s representative referenced a National Academy of Science study pertaining to a variety of types of noise delivery and resulting hearing loss. The Board reiterates, it is not disputed that the Veteran was exposed to noise during service or that noise exposure can result in hearing loss; the issue is whether in-service noise exposure as likely as not caused this veteran’s left ear hearing loss. In an August 2013 letter, the Veteran was notified that his service treatment records for his active duty service were unavailable. (See also August 2013 VA Memorandum.) Reports of medical examination during reserve service show that in December 1975 and September 1976 the Veteran’s hearing acuity was tested by whisper voice test and noted as 15/15. On each of the corresponding reports of medical history, the Veteran denied hearing loss. VA medical records show that, during an annual primary care visit in December 2002, the Veteran denied hearing difficulty. In June 2007 he requested to see audiology, but there is no record that his hearing was indeed evaluated. Records show that he was examined in December 2011, and a hearing aid was prescribed for his left ear. During the June 2013 VA examination, the Veteran reported that he wore hearing protection when on the flight deck during service. As to post-service occupational noise exposure, he reported working in painting/construction work and working for the railroad, wearing hearing protection when in areas of noise. As for recreational noise exposure, he reported going to clubs and using lawn equipment without using hearing protection. The examiner opined that a medical opinion could not be provided regarding the etiology of the Veteran’s hearing loss without resorting to speculation. It was explained that there were no service treatment records from the Veteran’s active duty service, and it was noted that, during reserve service, his hearing acuity was tested by whisper voice test. It was stated that “[w]hispered hearing tests are not sensitive to high frequency hearing loss and are not considered valid measurements of hearing.” It was stated that it would be difficult to determine if onset of hearing loss or acoustic trauma occurred during active service. It was concluded that it was “likely/possible that aging, occupational and recreational noise exposure, and general health” had contributed to his hearing loss. “It would be speculative to allocate a degree of his current hearing loss to each of these military vs. non-military etiologies mentioned.” Likewise, during the December 2019 VA examination, the Veteran reported the same types of in-service and post-service noise exposure and usage of hearing protection. Pure tone thresholds for the left ear, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 20 30 35 30 The examiner noted that he was prescribed trazadone and aspirin and that they were “potentially ototoxic medications.” The examiner opined that it was less likely than not that the Veteran’s left ear hearing loss was related to service. It was noted that the whisper voice tests conducted during the Veteran’s reserve service were not reliable evidence of normal hearing or hearing impairment, but, four and five years after active duty, he denied reduced hearing acuity. He reported during the examination that onset of hearing loss was gradual, and the examiner pointed out that he did not report onset during service. It was stated that the current audiogram revealed thresholds that were within age norms and were consistent with hearing loss due to aging/presbycusis and were inconsistent with noise-induced hearing loss/noise injury. It was stated, further, that the nature of the Veteran’s tinnitus was inconsistent with the more recurrent and pervasive tinnitus typically associated with noise exposure. It was opined, consequently, that there was no objective evidence of noise-induced hearing loss/noise injury and, therefore, a nexus could not be made that his left ear hearing loss was caused by or a result of military service. Addressing the June 2013 VA medical opinion, the examiner opined that that examiner was indicating that “it would be speculative to attribute ANY portion of his current [hearing loss] to ANY of those etiologies, including military noise exposure.” As factfinder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). The Veteran has not reported that he experienced any episodes of reduced hearing acuity during active duty or within the presumptive period for service connection. Indeed, at four and five years post-active duty, he denied having hearing loss. The Board finds these two statements highly probative as they were contemporaneously reporting his perception of his hearing acuity. Although he has reported that his hearing loss occurred gradually, he has not reported that he has had continuity of reduced hearing acuity since active duty or the presumptive period for onset. The earliest evidence of record to suggest a complaint of reduced hearing acuity is June 2007, was more than thirty years after active duty. During the December 2011 VA audiology consultation, he did not report that his symptoms were longstanding. Here, the Veteran has failed to meet his burden of supporting his claim for benefits on a presumptive basis. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). As the preponderance of the evidence is against finding that the Veteran’s left ear hearing loss manifested within the applicable presumptive period or that there has been continuity of symptomatology, the third Shedden element is not met on a presumptive basis, and the claim fails. As to a direct basis, on his December 2016 VA Form 9, the Veteran stated that his hearing loss was related to his job in service as an aircraft mechanic. Because the Veteran is not competent to provide an opinion as to the etiology of his left ear hearing loss, the Board gives more probative weight to the competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds the December 2019 VA medical opinion highly probative as it clearly explains why the Veteran’s left ear hearing loss was less likely as not related to active duty service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion.”); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The examiner considered that the Veteran was prescribed medication that may be ototoxic and that his pure tone thresholds were consistent with hearing loss for his age/presbycusis, which was inconsistent with noise induced hearing loss/noise injury. It was explained that the nature of the Veteran’s tinnitus was also inconsistent with that typically associated with noise exposure. Furthermore, the Veteran contemporaneously and currently denied reduced hearing acuity for years after active duty. There is no competent evidence to the contrary. As there is not a medical basis to support a nexus between service and the Veteran’s left ear hearing loss, the third Shedden element is not met on a direct basis, and the claim fails. Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 3. Tinnitus In the JMR, the parties agreed that the Board failed to provide an adequate statement of reasons or bases as to whether the Veteran’s claim for service connection for tinnitus was inextricably intertwined with his claim for service connection for hearing loss, which the Board had remanded. In other words, it was agreed that the Board erred when it did not remand both claims together because there was the suggestion in the record that the Veteran’s tinnitus might be related to his hearing loss. Based upon the following, the Board concludes that, while the Veteran has tinnitus, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology, nor is it directly related to active duty service. 38 U.S.C. §§ 1101(b), 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Fountain v. McDonald, 27 Vet. App. 258 (2015); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran reports having tinnitus, which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that “ringing in the ears is capable of lay observation”). As stated above, the Board finds that the Veteran experienced noise exposure during service. Accordingly, the first and second Shedden elements are met. VA medical records show that, in December 2002, the Veteran denied tinnitus during an annual primary care visit. He has consistently reported onset of his tinnitus as approximately 2010. (December 2011 VA medical records (tinnitus reported); June 2013 VA examination (“3 years ago”); December 2019 VA examination (“around 2010 per the Veteran”)). The Veteran has not contended, and the evidence does not establish, that his tinnitus began during service or within the presumptive period for service connection, and continuity of symptomatology is not established. Consequently, the third Shedden element is not met on a presumptive basis, and the claim fails. Turning to nexus on a direct basis, in 2011, the Veteran described his tinnitus as occasional, mild subjective high-pitch tinnitus; in 2013, it was intermittent, occurring three to four times per month, lasting 90 seconds; and in 2019, it was intermittent, occurring three times per week, lasting seconds. Most recently, he described it as a moderate whistle-like sound. The June 2013 VA examiner opined that it was less likely than not that the Veteran’s tinnitus was related to service because it began 39 years after service and he had a significant history of noise exposure with civilian employment over a period of years. It was stated that it was more likely that his tinnitus was due to presbycusis and/or “some other etiology.” In the JMP, the parties agreed that “some other etiology” suggested that the Veteran’s tinnitus might be a symptom of his hearing loss. The December 2019 VA examiner opined that it was less likely than not that the Veteran’s tinnitus was a symptom associated with his hearing loss or was caused by or the result of military noise exposure. It was explained that his intermittent and very brief tinnitus was inconsistent with the more recurrent and pervasive tinnitus typically associated with hearing loss. The examiner stated that the Veteran denied in-service onset of either hearing loss or tinnitus, and it was noted that this was supported by the record in that he denied hearing loss in 1975 and 1976 and reported onset of tinnitus in 2010. In was noted that the Veteran’s audiogram was consistent with hearing loss due to aging/presbycusis and, therefore, was inconsistent with noise injury. Likewise, the nature of his tinnitus was inconsistent with the more recurrent and pervasive tinnitus typically associated with noise exposure. It was opined that there was no objective evidence of noise-induced hearing loss/noise injury and, therefore, it was less likely than not that the Veteran’s tinnitus was caused by or a result of military service, to include in-service noise exposure. The probative medical evidence establishes that, although the Veteran was exposed to in-service noise, the nature of his tinnitus, which began several decades after service, is not consistent with the typical symptomatology of tinnitus that arises out of acoustic trauma or that is typically found as a comorbidity of hearing loss. As the preponderance of the evidence is against finding a nexus between active duty service and the Veteran’s tinnitus, the third Shedden element is not met on a direct basis, and the claim fails. To reiterate, it is not in dispute that the Veteran was exposed to noise during service or that he currently has tinnitus. The issue is medically complex, and consequently, the Board gives more probative weight to the competent medical evidence concerning a nexus between the two. The Board also notes that, because the preponderance of the evidence is against service connection for the Veteran’s hearing loss, even if his tinnitus were a symptom of his hearing loss, service connection for tinnitus still would not be warranted. See Wallin v. West, 11 Vet. App. 509, 512 (1998). (Continued on the next page)   Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.