Citation Nr: 21008269 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 16-50 815 DATE: February 12, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his tinnitus at least as likely as not related to in-service loud, excessive noise exposure. 2. The Veteran’s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and his bilateral hearing loss did not have its onset in service and is not otherwise etiologically related to an in-service event, injury, or illness. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 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 in the United States Army from July 1966 until his honorable discharge in July 1968. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). These matters come before the Board on appeal from a July 2011 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss and tinnitus. The Veteran did not file a notice of disagreement with the July 2011 rating decision. Thus, the decision became final. But, in July 2012, after the decision became final, the Veteran submitted a request for reconsideration. As part of his request, he submitted relevant official service department records that were not of record at the time of the July 2011 rating decision. Thus, the Veteran was not required to submit new and material evidence to reopen his claim. 38 C.F.R. § 3.156(c). The RO readjudicated the Veteran’s claim and issued a June 2014 rating decision continuing denial of service connection for bilateral hearing loss and tinnitus. The Veteran filed a timely notice of disagreement with the June 2014 rating decision. The RO issued a September 2016 statement of the case continuing denial of his claims for service connection from which the Veteran timely appealed. In May 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. In September 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain an addendum opinion from a VA medical examiner as to the etiology of the Veteran’s bilateral hearing loss and tinnitus, which the RO accomplished. The case now returns to the Board. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §§ 1154(a); 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. In addition, service connection may be established on a presumptive basis for certain “chronic diseases” that manifest in service or within the presumptive period following separation from service (such that their existence in service is presumed). 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The term “chronic disease” refers to those diseases in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), which include organic diseases of the nervous system, including hearing loss and tinnitus. “For the showing of chronic disease in service[,] there is required 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). Where a chronic disease is shown in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought.” Walker, 708 F.3d at 1336. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. Where the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Id. Continuity of symptomatology is established if a claimant demonstrates that a condition was “noted” during service or during the presumptive period, there is evidence of post-service continuity of the same symptoms, and there is evidence of a nexus between the present disability and those symptoms. 38 C.F.R. § 3.303(b). A condition is “noted” where evidence is “indicative of but not dispositive of a chronic disease.” Walker, 708 F.3d at 1336. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Id. at 1339. 1. Entitlement to service connection for tinnitus First element: A current disability As to the first element of service connection, a current disability, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service “because ringing in the ears is capable of lay observation”). During his July 2011 VA audiological examination, the Veteran reported symptoms of tinnitus. He has also generally asserted throughout his appeal, in both his submitted statements and his Board hearing testimony, that he had tinnitus since his active military service. The Board finds the Veteran is competent to report his sensations associated with tinnitus. The Board also finds the Veteran credible, but only to the extent that he asserts he has tinnitus. As will be discussed later, the Board finds a lack of credibility with respect to his asserted time of onset. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (“The Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted . . . .”). Finally, the Board finds his statements about having tinnitus probative. Thus, the Board finds the Veteran had tinnitus throughout the appeal period. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Board finds the Veteran’s military occupational specialty (MOS) as a radiotelephone operator reasonably exposed him to loud, excessive noise. As indicated in his military personnel records, the Veteran served as a radiotelephone operator, wireman, and switchboard operator between December 1966 and July 1968. Therefore, the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s tinnitus and in-service loud, excessive noise exposure, the Board finds the evidence is in equipoise, that is, it is equally weighted both for and against the claim. The Veteran was afforded an in-person audiological examination in July 2011, but the examiner was not asked to provide an opinion on the etiology of the Veteran’s tinnitus. The examiner did record that the Veteran reported that he worked for an aircraft company for one year following his military service, and he reported the use of chainsaws for recreation. An addendum opinion was sought, and in February 2013, the same examiner opined that the Veteran’s tinnitus was less likely than not incurred in or caused by his military service. She reasoned that the Veteran’s post-military experiences led to his present hearing loss, and because tinnitus is a known symptom of hearing loss, his tinnitus was likely related to his post-military experiences. Moreover, the Veteran reported that his tinnitus started after his separation from military service, between approximately 1998 and 2000. This is in contrast with his Board hearing testimony, wherein he stated that he experienced tinnitus during active military service. May 2019 Board Hearing Transcript, at 5. The Board finds the February 2013 opinion and rationale inadequate and of no probative value. The examiner asserted that the Veteran’s tinnitus was attributable to his post-military experiences, which she concluded caused his hearing loss. She did not explain how she came to that conclusion. She did not explain why the Veteran’s onset of tinnitus 30 years after his separation from service was relevant. She also did not address why the Veteran’s MOS and exposure to loud noises in service could not be medically related to the Veteran’s tinnitus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). The RO obtained another VA medical opinion in November 2019 from the same examiner who completed the July 2011 and February 2013 reports. She now opined, “Tinnitus etiology during active duty service cannot be determined with reasonable certainty based on available evidence in the record or scientific knowledge.” The examiner nonetheless provided an analysis of the evidence. She explained that there was a lack of a shift in hearing during the Veteran’s active duty service, which was inconsistent with his reported tinnitus. She noted the Veteran made no complaints of nor did he receive treatment for tinnitus during active military service. Again, she reasoned that his tinnitus was likely related to the post-military experiences that caused his current hearing loss as tinnitus is known to be a symptom of hearing loss. She cited medical text, Tinnitus: Theory & Management, James B Snow Jr., MD, BC Decker Inc. 2004., pp 1-2, for the proposition that “epidemiologic studies show that presbycusis (genetic/age related hearing loss) is the most prevalent cause of tinnitus followed by excessive noise exposure.” This opinion too is inadequate. Her opinion employed an incorrect standard. She stated she could not opine as to the etiology of the Veteran’s tinnitus to “a reasonable degree of certainty.” The standard, however, is “at least as likely as not,” which is not the same as the standard used by the examiner. Furthermore, her cited medical text actually lends support to the Veteran’s claim. While age-related hearing loss may be the most prevalent cause of tinnitus, excessive noise exposure is also a potential cause, just a less prevalent one. The Board has reviewed the evidence of record. It notes that there is no medical evidence in support of the Veteran’s claim for service connection except for the November 2019 VA examiner’s reference to a medical text from which she provided an ambivalent opinion. Nonetheless, tinnitus is not a disease that necessarily requires a medical diagnosis or a medical nexus opinion to establish service connection. Rather, in some circumstances, a lay person’s testimony alone may serve to accomplish that purpose. The Veteran testified he was employed by an aircraft company following his military service and then as a plumber’s assistant, neither of which exposed him to loud noises. The evidence does not indicate to what extent the Veteran used chainsaws for recreation such that his hearing was impacted. There is no other evidence showing exposure to loud, excessive noise following his discharge from military service. Although the evidence of record appears to suggest the Veteran’s tinnitus is a result of his bilateral hearing loss, the medical evidence of record is insufficient for the Board to reach this formal conclusion. Rather than remand for a new VA examination and medical opinion from a separate examiner, the Board affords the Veteran the benefit of the doubt and finds his tinnitus as it is at least as likely as not related to his MOS. Therefore, for the third element is satisfied. Accordingly, the Veteran is entitled to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss First element: A current disability As to the first element, a current disability, for VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s July 2011 VA examination indicates he meets the auditory thresholds as well as the speech recognition scores to have recognizable bilateral hearing disability for VA purposes. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, for the same reasons discussed above in connection with the Veteran’s claim for service connection for tinnitus, the Veteran has established an in-service event, loud, excessive noise exposure, due to his MOS as a radiotelephone operator. Therefore, the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s bilateral hearing loss and in-service exposure to loud, excessive noise, the Board finds the evidence weighs against such a finding. The Board first addresses whether the Veteran is entitled to presumptive service connection under 38 C.F.R. § 3.309(a). In her February 2013 opinion, the VA examiner found that the Veteran did not experience bilateral hearing loss at the time of his separation examination in June 1965. His service treatment records (STRs) are silent for any complaints of hearing loss or associated symptoms in-service. The Veteran testified he did not seek treatment for hearing loss while in service. May 2019 Board Hearing Transcript, at 4. The Veteran submitted a statement from his wife in which she stated that the Veteran suffered from hearing loss since returning home from military service. But the Veteran testified he did not notice problems with his hearing until about 25 years after his military service. Id. at 5. The Board finds the Veteran’s wife is competent to state what she experienced with the Veteran with respect to his hearing. She is also credible. In this case, however, the Board does not find her statement probative. She has not provided any description of what led to her believe the Veteran suffered from hearing loss following his military service other than the Veteran’s own statements. She has only asserted a broad statement, which carries no information by which to assess its probative value. Instead, the Board finds the Veteran’s testimony more credible and probative as to when he began to experience hearing issues. Accordingly, the Board finds the Veteran was not diagnosed with hearing loss nor did he experience symptoms of hearing loss in service or within one year following his separation from service. Therefore, the preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss was chronic in service or within one year following service, or that there was a continuity of symptomatology. As such, presumptive service connection is not warranted. 38 C.F.R. § 3.309(a). Even though a presumptive service connection is precluded for the Veteran’s bilateral hearing loss, a grant of service connection may be made on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran was afforded an in-person audiological examination in July 2011. The examiner recorded the Veteran’s lay statements, and reviewed his claims file, to include his medical records and STRs. The examiner conducted appropriate testing and otherwise relied on accurate facts. She was not asked to provide an opinion on the etiology of the Veteran’s bilateral hearing loss at that time. Nevertheless, she noted that the Veteran’s hearing was within normal limits at the time of entrance to and separation from the military. She found a significant hearing threshold shift did not occur during his military service. The examiner then provided a February 2013 addendum opinion in which she opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by his military service. This opinion, however, is inadequate because the examiner only relied on the Veteran’s entrance and separation examinations and did not consider delayed-onset hearing loss. She did not address the Veteran’s lay statements as to noise exposure as part of his MOS or other military experiences. The examiner provided a second addendum opinion in November 2019 in which she opined that, based on review of the Veteran’s records, there was no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of his military service, to include noise exposure. She reasoned that the Veteran’s entrance and separation examinations did not illustrate a significant change in hearing thresholds during his military service. She referenced a September 22, 2005, Institute of Medicine study, “Noise & Military Service: Implications for Hearing Loss and Tinnitus,” and stated that based on the anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that such delayed effects occurred in the Veteran. Finally, she reasoned that the Veteran’s audiograms from October 1964, June 1968, and July 2011 demonstrated hearing loss most consistent with genetic/age related hearing. The Board acknowledges that in McCray v. Wilkie, 31 Vet. App. 243 (2019), the U.S. Court of Appeals for Veterans Claims discussed the a similar, if not the same, Institute of Medicine (IOM) report, although the publication date was in 2006. The court noted that the IOM report concluded, in part, that “based on current knowledge of cochlear physiology there was no sufficient scientific basis for the existence of delayed-onset hearing loss.” The IOM report also indicated that “[t]here 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” and that “definitive studies to address this issue have not been performed.” The Court then held that if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. Id. at 257. The Board acknowledges that the VA examiner relied, in part, on the 2005 IOM report as a basis for providing a negative opinion, and the 2005 IOM report has qualifying or contradictory statements, as noted by the McCray court. The Board finds this does not render the entire opinion inadequate or diminish its probative value. The Board notes that the IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. Nevertheless, the IOM report’s own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (“unlikely”). Indeed, the committee noted its understanding of the mechanisms and processes involved in the recovery from noise exposure as it suggested “a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.” The Board finds that the use of the word “extremely” also lends much support to finding that the report retains its probative value and is not inadequate. The Board notes opposing studies or other contradictory medical evidence has not been submitted in this appeal. See 38 U.S.C. § 5107(a) (“a claimant has the responsibility to present and support a claim for benefits . . . .”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). Moreover, the McCray court referenced “a medical text’s qualifying or contradictory aspects” as one factor on a non-exhaustive list that is relevant to the Board’s evaluation of the probative value and adequacy of a medical opinion. See McCray, 31 Vet. App. 243. Here, the VA examiner only partially relied on the findings of the 2005 IOM report and discussed other factors that were contributors to the Veteran’s current hearing impairment. The examiner discussed the Veteran’s post-military loud, excessive noise exposure and his age and genetics as risk factors for hearing loss. Thus, the VA examiner did not rely entirely on the IOM report in forming the conclusion but, instead, considered all relevant facts in this case. Absent evidence to the contrary, the Board finds the medical examiner is competent. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds the examiner’s opinion is persuasive. Her opinion and rationale are the most probative evidence of record on the etiology of the Veteran’s bilateral hearing loss. Reading the examiner’s opinion as a whole, the examiner relied on accurate facts, considered the Veteran’s in-service noise exposure, described the Veteran’s disability in sufficient detail, related medical literature to the Veteran’s specific facts, and provided “a reasoned medical explanation” that connected her conclusion to supporting data. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations[.]”); Nieves-Rodriguez, 22 Vet. App. at 304. The Board observes that the Veteran was evaluated in March 2011 at a VA medical center as to his bilateral hearing loss. March 2011 VA Audiology Consult Note. Significantly, the treating audiologist was the same VA examiner from July 2011, February 2013, and November 2019. The audiologist recorded the Veteran’s lay statements as to his bilateral hearing loss. She also conducted hearing tests at that time. Her assessment was that the Veteran’s bilateral hearing loss was consistent with the Veteran’s “history.” The Board does not find this sole statement contradicts or outweighs the audiologists later opinions because it is equivocal. The examiner could have been referring to the Veteran’s family history, occupational history, or military history without consideration of his noise exposure. Thus, the Board affords it no probative value. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Therefore, the third element of service connection is not satisfied. Accordingly, the Veteran is not entitled to service connection for bilateral hearing loss. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.