Citation Nr: 21007683 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-08 118 DATE: February 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT Chronic symptoms of bilateral hearing loss and tinnitus were not shown during service; did not manifest to a compensable degree within one year of service separation; were not continuous since service; manifested many years after service separation; and are not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 2. The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to March 1973. This appeal is before the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2017, the Veteran testified via videoconference in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. A December 2017 Board decision denied the claims of entitlement to service bilateral hearing loss and tinnitus. The Veteran then appealed the December 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In January 2019, the Secretary of VA and a representative of the Veteran filed a Joint Motion for Remand (JMR) which was adopted as the Court’s Order in January 2019. These matters were most recently before the Board in August 2019 and June 2020, at which time they were remanded for further development of the record. Service Connection – Applicable Law and Regulations Service connection may be granted for disability or injury incurred in, or aggravated by, active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 . This generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and 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). For certain chronic disorders shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service-connected. 38 U.S.C. §§ 1101, 1112, 1113 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, are considered chronic diseases under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology after discharge is an alternative means of establishing service connection with respect to the listed chronic diseases. 38 C.F.R. § 3.303(b). 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 of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the 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. See 38 C.F.R. § 3.385. The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Factual Background and Analysis The Veteran contends that his bilateral hearing loss and tinnitus are the result of in-service acoustic trauma. See, e.g., February 2012 Statement from Veteran; see also, Board Hearing Transcript, pp. 16-19. As an initial matter, the Board finds that the Veteran has a current bilateral hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385; see also January 2015 and November 2019 VA Audiological Examinations (diagnosing bilateral sensorineural hearing loss). During the audiological examinations, the Veteran also complained of tinnitus. See Charles v. Principi, 16 Vet. App 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Such reports constitute competent and credible evidence to establish a current tinnitus disability. With respect to in-service incurrence of a disease or injury, service treatment records (STRs) are silent with respect to complaints, treatment, or diagnoses of hearing loss or tinnitus during the Veteran’s approximately three months of active duty service. The February 1973 service separation Report of Medical History shows that the Veteran denied current symptoms and a history of hearing loss and ear trouble. Nevertheless, the Veteran has competently and credibly reported that he was exposed to acoustic trauma during basic training. See, e.g., February 2012 Statement from Veteran (Veteran states he fired multiple weapons, such as M-16s, 50 caliber machine guns, and grenades, during basic/physical training); see also June 2012 Statement In Support of Claim (Veteran states an explosion occurred close to the left side of his head during a Demolition Course while in basic training). The Veteran’s personnel records also reflect that he was a “basic trainee” for a period of two months and that he received qualifications badges for the M16 rifle. Given the foregoing, Board will concede that the Veteran was exposed to at least some degree of acoustic trauma in-service. While the Veteran has current bilateral hearing loss and tinnitus diagnoses, and evidence shows in-service noise exposure, the preponderance of the evidence is against finding that either disability began during active service, manifested to a compensable degree within one year after discharge from service, was continuous since service or is otherwise related to service, to include in-service noise exposure. As noted, STRs are silent for complaints, treatment, and/or diagnoses of hearing loss or tinnitus; the Veteran’s hearing acuity was normal on separation examination; and he expressly denied having had hearing loss or ear trouble on the separation Report of Medical History. Following service, the earliest clinical evidence demonstrating hearing loss and tinnitus is dated in 2005 and 2006, respectively - nearly 32 years after separation from service and well outside of the one-year presumptive period for chronic diseases. See September 2005 Private Audiology Report and September 2006 Consultation Report. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board notes that the Veteran has essentially endorsed a continuity of (primarily, left ear) hearing loss and tinnitus symptomatology since service. For example, during his hearing before the undersigned, the Veteran stated that he has experienced ringing in his left ear since being exposed to explosion noise during basic training. Although the Veteran is competent to report on such matters, the Board does not find his statements to be credible as they are inconsistent with the evidence of record. Indeed, he reported no hearing loss or tinnitus during service and no such symptoms were noted or treated. He also specifically denied having past or current symptoms of hearing loss when so asked on the separation Report of Medical History in February 1973. It thus appears that the Veteran was not reporting hearing loss or tinnitus at a time when he now says that he had such symptoms, and this evidence tends to undermine any assertion of recurrent symptoms since service. While lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, the first post-service treatment for hearing problems was documented in 2005/2006. At that time, the Veteran reported a “sudden” onset of left ear hearing loss in May 2006 with constant tinnitus “for the past week.” See, e.g., September 2006 Audiological Evaluation, L.F., M.S., CCC-A. Similar statements were repeated in May 2006 (“sudden hearing loss in left ear”) during a brain MRI which revealed a left acoustic schwannoma/neuroma. See May 2006 MRI Report, Jefferson City Medical Group JCMG). A contemporaneous JCMG otolaryngology consultation note indicated that the Veteran reported taking a shower 6 weeks prior when “both ears popped and he noticed a sudden decrease in left ear hearing.” Notably, none of these audiological treatment records reference or otherwise document longstanding complaints or a previous history of right or left ear hearing loss or tinnitus. It is reasonable to assume that the Veteran would have referenced a prior acoustic injury or previous history of hearing loss/tinnitus in this context. For these reasons, the Board does not find the Veteran’s assertions as to continuity to be credible. Based on the foregoing, the Board concludes that the Veteran's bilateral hearing loss and tinnitus were not shown as chronic in-service and did not manifest to a compensable degree within the applicable presumptive period; and continuity of symptomatology is not established. Additionally, the only competent medical “nexus” opinions of record are against the claims for service connection. (Note: the January 2015 VA opinion was deemed inadequate by the Court and will thus not be further discussed). Specifically, in September 2019, a VA audiologist examined the Veteran, reviewed the claims file, and opined that hearing loss and tinnitus were less likely than not related to service. In so finding, the examiner reasoned the following: “Hearing was within normal limits when he was discharged from the military and there were no significant threshold shifts present bilaterally. He reports serving for 3 months in the military and then he reports working in noisy professions as a carpenter and in farming when he left the military for 29 years. His last case history, he reported he worked in these professions for 35 years.” The examiner further noted that the Veteran was diagnosed with a left acoustic neuroma in 2005, “which can cause worsening hearing and tinnitus on the affected side.” With respect to tinnitus, the examiner reasoned the following: “He had hearing within normal limits at separation and there were no significant threshold shifts present bilaterally from entrance to separation. On his last C&P in 2015, he reported that his tinnitus began in 2005 and reports it was caused by his acoustic neuroma.” The Board subsequently sought an addendum opinion from the same VA audiologist. In September 2020, the VA examiner again opined that it was less likely than not that the Veteran’s hearing loss and tinnitus were caused by or a result of military noise exposure. The examiner reached her conclusion by citing to the following evidence: (1) the Veteran’s hearing was within normal limits on military entrance and separation audiograms and there were no significant threshold shifts from entrance to discharge; (2) the Veteran reported exposure to artillery and weapons during basic training and served 3 months in the military without the use of hearing protection; (3) the Veteran reported hunting as a kid and working as a carpenter and farmer as a civilian, which are both professions with significant noise exposure as he reported he was required to wear hearing protection; (4) the Veteran was diagnosed with a left acoustic neuroma in 2005 and reported that a current MRI may have uncovered another acoustic tumor in the right ear; (5) The National Institute on Deafness and Other Communication Disorders (NIDCD) defines an acoustic neuroma as "a benign, usually slow-growing tumor that develops from the balance and hearing nerves supplying the inner ear...As the vestibular schwannoma grows, it affects the hearing and balance nerves, usually causing unilateral (one-sided) or asymmetric hearing loss, tinnitus (ringing in the ear), and dizziness/loss of balance."; (6) the Veteran wrote that his tinnitus began in 1972 as the result of a loud bomb, however, on his last C&P in 2015, he wrote that it began in 2005 and that it started because of his acoustic neuroma; and (7) the Institute of Medicine (IOM) report stated, “There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” The Board finds the September 2020 VA addendum opinion to be particularly probative as to the issue of nexus as it was supported by sound medical rationale and expressly considered the Veteran’s statements as to onset, as well as his military and post-service medical and occupational history, to include noise exposure, acoustic neuromas, and delayed onset of hearing loss. Notably, there are no medical opinions of record to the contrary. Lastly, the Board acknowledges the Veteran’s belief that his bilateral hearing loss and tinnitus disorders are due to in-service acoustic trauma. Although the Veteran is competent to report symptoms of hearing loss and can self-diagnose tinnitus, he is not competent to offer an opinion as to the etiology of either hearing loss or tinnitus, which involves making findings based primarily on medical knowledge of auditory disorders. Indeed, the Veteran is not shown to possess the requisite medical expertise to render a competent medical opinion regarding any relationship between current bilateral hearing loss and tinnitus and active service. Accordingly, the Board concludes that service connection for bilateral hearing loss and tinnitus is not warranted. As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49(1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.