Citation Nr: 21008600 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 20-28 134 DATE: February 17, 2021 ORDER The claim of entitlement to service connection for tinnitus for treatment purposes only under 38 U.S.C. Chapter 17 is denied. FINDING OF FACT 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. CONCLUSION OF LAW The criteria for service connection for tinnitus for treatment purposes only under Chapter 17, Title 38, U.S.C. have not been met. 38 U.S.C. §§ 1110, 1154(a), 1702(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 17.109. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from September 1981 to September 1983 and was discharged under other than honorable conditions. In a November 2017 Administrative Decision, the Appellant’s discharge from the military for his period of service from September 1981 to September 1983 was determined dishonorable as it was noted that he was discharged for multiple offenses resulting in Nonjudical Punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ). The offenses warranting NJP included three separate incidents of being absent without leave (AWOL) resulting in NJP in January 1983; an indecent assault resulting in NJP in February 1983; insubordinate conduct towards a Noncommissioned Officer, failing to obey order, resisting arrest, communicating a threat and drunk and disorderly behavior resulting in NJP in May 1983. The November 2017 Administrative Decision determined that there was no evidence to suggest that the Appellant was insane at the time that the offenses that led to the undesirable discharge were committed. It was pointed out that 38 C.F.R. §3.12(d)(4) states that a discharge under other than honorable conditions issued because of willful and persistent misconduct acts as a bar to entitlement to Veterans benefits. The Administrative Decision allowed for entitlement to health care benefits under Chapter 17. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2018 rating decision, which in part denied service connection for tinnitus for treatment purposes. The Veteran filed a NOD in January 2019; a statement of the case (SOC) was issued in April 2020 and he perfected his appeal in June 2020. Other issues appealed in the January 2019 included an appeal of service connection for a psychiatric disability for treatment purposes and for bilateral hallux valgus (bunion) foot disabilities for treatment purposes. These were removed from appellate status via a March 2020 rating decision granting service connection for bilateral hallux valgus disabilities for treatment purposes, and an April 2020 rating which denied service connection for a psychiatric disability of depressive disorder for treatment purposes. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently before the Board contains no indication that the Veteran initiated an appeal with the initial ratings or effective date assigned. Thus, this matter is no longer in appellate status. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). 1. Service connection for tinnitus for treatment purposes Health care and related benefits authorized by Chapter 17 of title 38 U.S.C. shall be provided to certain former servicepersons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty. 38 C.F.R. § 3.360 (a). With certain exceptions, such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions. Such benefits may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 C.F.R. § 3.12 (c) applies. 38 C.F.R. § 3.360 (b). In this case, the Appellant has not been found to have any of the bars listed in 38 C.F.R. § 3.12 (c) due to his other than honorable discharge, but he has, as discussed, been found to have willful and persistent misconduct pursuant to 38 C.F.R. § 3.12 (d)(4). As also noted, this finding does allow for the Appellant to still be eligible for medical treatment for a current disability that is found to have been incurred or aggravated in his active duty service. In making determinations of health-care eligibility, the same criteria will be used as is now applicable to determinations of service incurrence and in line of duty when there is no character of discharge bar. 38 C.F.R. § 3.360 (c). Accordingly, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303 (a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has tinnitus as a result of noise exposure in service. He alleged in his June 2020 substantive appeal that he has ringing in ears from sleeping too close to the engine room aboard the U.S.S. ACADIA AD-42. Service treatment records contain no evidence of treatment for or complaints of tinnitus or hearing loss for that matter. His examination and report of medical history on entrance in August 1981 and separation in September 1983 are negative for any ear complaints including tinnitus or hearing loss. The service treatment records do show the Veteran to have had multiple instances of cold/URI symptoms where his ears were examined with normal findings of the ears and tympanic membranes (TM) in November 1981, October 1982, January 1983, and July 1983. However, he did have some ear issues noted in records from March 1982 when he had cold symptoms with drums bulging and pain on touching internal part of the ear assessed as history of ear infection versus cold symptoms and in February 1983 when he was seen for coughing and sinus congestion with ear drainage noted in the ear canal. Service personnel records disclose the Appellant was a seaman recruit. See DD-214. Other service personnel records focus mainly on his infractions but do not disclose him to have MOS duties involving hazardous noise exposure. Rather, he was shown to be a student in Yeoman’s course in February 1982, and engaged in administrative-related work in March 1983. He was shown to be aboard the U.S.S. ACADIA AD-42. See 34 pg. SPRS received 6/16/17 at pg. 9, 11, 15, 16. Post service records include a September 2006 record wherein the Veteran denied hearing loss, vertigo and tinnitus. See 22 pg. CAPRI received 1/12/18 at pg. 3. Other records disclose some issues with tinnitus that appears to be of post-service onset. This includes a December 2013 record, where the Veteran requested a hearing test indicating he may have an “intermittently past month tinnitus.” In a January 2014 audiology consult the Veteran reported sometimes having to strain to hear both in quiet and in background noise, with him denying a history of ear infection, otalgia, or aural pressure. Over the last two months has heard intermittent ringing in the right ear, possibly also the left, a couple times each week; each occurrence lasts approximately 20 minutes and sometimes was present when he wakes up in the morning. It sometimes occurred randomly throughout the day. The Veteran noticed a pressure sensation in the ear when he hears the ringing in the ear. Although he did not report dizziness, experiences lightheadedness a couple times each week with episodes lasting approximately 5 minutes; this continued despite recently decreasing his sodium intake and he reported his blood pressure is good without assistance of prescription medications. His noise exposure history included firing range during boot camp and being near generators often over two years on ship while in the service. Post service, he worked various construction jobs and various delivery driver jobs off and on over the years; and he occasionally used home repair and yard maintenance tools without hearing protection. Following audiological evaluation, the impression was hearing within normal limits for each ear. Communication strategies and effects of distance and noise on the speech signal were discussed. Ringing in the ears was also discussed. An August 2015 audiological reevaluation described complaints of a constant ringing sound that is at least louder in the right ear than the left ear and has worsened in the last two years. It was severe to the point of pain in the right ear more than the left ear. The ringing was more noticeable in quiet surroundings. The Veteran took Motrin three times per week for the otalgia; possibly coincidentally, he also reported jaw clenching and grinding teeth. He denied changes to history of ear infection, dizziness, noise exposure, and family history of hearing loss since the 2014 evaluation. Following audiological evaluation, he was assessed with a bilateral mild high frequency sensorineural hearing loss with notable threshold decreases for each ear relative to the 01/02/2014 evaluation. Given the notable threshold decreases since the evaluation in 2014, his complaint of increased ringing in the ears and otalgia, an ENT consult request was placed for further evaluation. With normal hearing through 3kHz for each ear he was not a candidate for amplification. The report of a September 2015 ear, nose and throat (ENT ) evaluation addressing notable threshold shifts in hearing and increased ringing in ears and otalgia since 2014, noted a history of serving in the Navy 1980-1983 where he was an administrative clerk on board a ship, close to the engine room with history of noise exposure. Thereafter, he worked as an administrative clerk. For the last 7 years, he works at in sterilization/supplies. A review of systems noted hearing problems, as above with tinnitus, which is variable in intensity. He denied disequilibrium or any ear discharge. Physical examination disclosed a completely negative ENT examination. The ENT doctor discussed with the Appellant about tinnitus and significance that it is an indication of something the matter with auditory pathway, but not specific. The degree of tinnitus did not correlate with the degree of hearing loss. The patient was not a candidate for hearing aids at this time. The association of tinnitus with use of aspirin, quinine, and nonsteroidal antiinflammatory drugs was discussed and the holistic approach to tinnitus control with ginkgo and Lipoflavonoid was also discussed. The reliability of that is unpredictable. The patient was discharged from ENT. The rest of the treatment records to 2020 addressed other medical issues besides tinnitus. The report of a December 2017 VA examination to address complaints of hearing loss and tinnitus disclosed that the audiological test results were not valid for rating purposes (not indicative of organic hearing loss). The Appellant’s responses to puretones were inconsistent (ranging from mild to moderately¬ severe hearing loss levels for any given frequency) and were not in good agreement with supposed speech recognition thresholds. Repeated attempts were made to ascertain true organic hearing thresholds. This exam was not valid for rating purposes. Likewise, speech discrimination score (Maryland CNC word list) could not test both ears. The Appellant reported recurrent tinnitus. He described an onset while in service, “It reminds me of the same noise I would hear every night on the ship traveling out to sea, going from port to port.” Following examination, the examiner gave an etiology opinion of the tinnitus finding it is less likely than not (less than 50% probability) caused by or a result of military noise exposure. The rationale pointed out that his separation audiogram dated 9/23/1983 noted normal hearing bilaterally. Given the Appellant’s MOS with low probability for exposure to hazardous noise and no evidence of significant threshold shift while in service and/or complaints of tinnitus while in service, his tinnitus is less likely than not (less than 50% probability) caused by or a result of military noise exposure. The examiner further remarked in support of the unfavorable opinion by noting that there are pertinent medical records for the complaint, symptomatology, or diagnosis of the condition. The examiner further opined that the Veteran’s ringing in ears is less likely than not incurred in or caused by his threshold shift in hearing. It was noted that that the above opinion was based on thorough c-file review, review of all available medical records and current peer reviewed medical literature. Review of the file shows normal enlistment and separation audiograms. Given the Veteran’s MOS with low probability for exposure to hazardous noise and no evidence of significant threshold shift while inservice and/or complaints of tinnitus while in service, the Veteran’s tinnitus is less likely than not (less than 50% probability) caused by or a result of military noise exposure. Given the above, the preponderance of the medical evidence reflects tinnitus to be a subjective symptom that was less likely as not was caused by in-service acoustic trauma. The unfavorable VA opinion is found to be supported by adequate rationale and is of high probative value. It is also supported by the medical evidence showing that tinnitus was not noted until decades after service, with the records from December 2013 and January 2014 showing the tinnitus to only be of a month or two’s duration at that time. The Board notes that the Appellant is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). However, his credibility regarding the onset of tinnitus symptoms described in the December 2017 VA examination as beginning in service and which he related to being near the ship’s engines is negated by the unfavorable evidence suggesting that the tinnitus did not exist for decades after service. Additionally, the Appellant’s MOS is noted to not involve exposure to hazardous noise. The Board therefore finds that the Appellant has tinnitus, however the preponderance of the competent and probative medical evidence indicates that it less likely than not began in service or is otherwise related to any incident in-service including the claimed exposure to acoustic trauma. Nor does the preponderance of the competent evidence suggest a continuity of symptoms or of an onset of tinnitus within one year after discharge under 38 C.F.R. § 3.309 (a), such as organic disease of the nervous system. Accordingly, the Board finds that service connection for tinnitus is not warranted for treatment purposes. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102, 17.109. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.