Citation Nr: 21011184 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-15 477 DATE: March 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. 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 the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran’s tinnitus 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 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 bilateral hearing loss have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 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 Marine Corps from January 1974 to September 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In April 2018 and January 2020, the Board remanded the matters to the Agency of Original Jurisdiction for additional development and they have since returned to further appellate review. Service Connection for Bilateral Hearing Loss and Tinnitus Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Impaired hearing is considered a disability for VA purposes when: the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 Veteran has a current sensorineural hearing loss of the right ear. See March 2019 VA Examination Report. For the left ear, the examination findings do not show a hearing loss disability for VA purposes. See September 2011, March 2019, February 2020 VA Examination Reports. A March 2018 private medical opinion by hearing instrument specialist J.P. notes that the Veteran has profound hearing loss binaurally showing a more severe loss in the right ear. Regarding tinnitus, the Veteran was diagnosed with recurrent tinnitus. See March 2019 VA Examination Report. Service treatment records show no complaints, diagnosis, or treatment related to hearing loss and tinnitus. During the August 1975 separation examination, evaluation of the ears was normal. His in-service audiological examination yielded bilateral hearing within normal limits for VA purposes. In a corresponding report of medical history, the Veteran specifically denied having had ear trouble or hearing loss. A hearing loss and tinnitus disability is not shown by medical evidence until many years after the Veteran’s separation from service. As hearing loss and tinnitus is not shown to have been present during service or in the first year after separation of service, and continuity of symptomatology leading to a diagnosis of sensorineural hearing loss and tinnitus is not shown, in-service incurrence of hearing loss and tinnitus cannot be presumed. See 38 C.F.R. §§ 3.307, 3.309(a). To the extent the Veteran asserts a continuity of symptomatology beginning during service, the Board finds these statements to lack credibility as they are in direct conflict with the Veteran’s report of medical history at separation from service where he denied having had ear trouble or hearing loss. Had the Veteran been experiencing ringing in the ears or similar symptoms at the time, the Board would expect he would have reported this when asked about ear trouble as the symptoms are perceived in the ear. The Board finds the report of medical history at separation from service to be more reliable than more recent assertions as it was done contemporaneous to service and for the purpose of identifying disability at that time. The Veteran presented for a VA examination in September 2011, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner noted that the Veteran’s enlistment and separation audiograms were within normal limits across the frequency range. The Veteran reported complaining of hearing loss and tinnitus over the past 10 or so years, while his active duty service occurred 30 plus years ago. Based on the foregoing, the examiner opined that it is less likely than not that the Veteran’s current hearing loss or tinnitus in his right ear are due to his service, and more likely a result of a post service occurrence. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. The Veteran submitted a private medical opinion by a hearing instrument specialist J.P. in March 2018. After conducting a hearing evaluation, the specialist noted that the Veteran displayed a severe to profound hearing loss binaurally showing a more severe loss in the right ear. Because of the slope in the hearing loss, the specialist opined that the Veteran’s hearing loss may be due to his service. The Veteran presented for another VA examination in March 2019, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner noted that the Veteran had normal hearing in his left ear. Regarding the right ear, the examiner opined that the Veteran’s right ear hearing loss was not at least as likely as not caused by or a result of an event military service. In support of this conclusion, the examiner explained that the Veteran’s separation hearing exam in 1975 revealed normal hearing bilaterally. The examiner noted that the Veteran reported in 2011 of hearing loss and tinnitus onset about 10 years ago. The examiner noted that he reported positive history of familial hearing loss and tinnitus. The examiner opined that as there was no hearing loss at separation and no standard threshold shift noted, it is less likely as not that the Veteran’s hearing loss in the right ear is a result of noise exposure while in the service. The examiner also acknowledged the Institute of Medicine Study (IOM) in 2005 which indicated that current knowledge of cochlear physiology does not provide sufficient scientific basis for the existence of delayed-onset hearing loss. The examiner noted that the IOM did not rule out that delayed-onset might exist, but because the requisite longitudinal animal and human studies have not been done, and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. Regarding tinnitus, the examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. In support of this conclusion, the examiner explained that the service treatment record was silent for tinnitus complaints and there was no significant in-service threshold shift present. The examiner noted that in the absence of an objectively verifiable noise injury, the association between the claimed tinnitus and noise exposure cannot be assumed to exist. The examiner noted that tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, the examiner noted that you would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. The examiner noted that the IOM study did not state that tinnitus could result from undiagnosed noise injuries. The examiner noted that with most cases, tinnitus is accompanied by a measurable hearing loss, and that the audiogram, though imperfect, is the accepted objective basis for determining noise injuries. The examiner also noted that the Veteran’s report of delayed-onset tinnitus (10 or more years after service) due to military acoustic trauma is inconsistent with research which have shown that hazardous noise exposure has an immediate effect on hearing, and it is usually temporary at first. It does not have a delayed-onset, nor is it progressive or cumulative. It usually takes many incidents of temporary noise-induced hearing loss and tinnitus before it becomes permanent. As such, the examiner opined that the presence of tinnitus is less likely as not caused by military acoustic trauma. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. The Veteran presented for a VA examination in February 2020, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported that the Veteran had normal hearing bilaterally. The examiner opined that the Veteran’s bilateral hearing loss and tinnitus was not at least as likely as not caused by or a result of an event in military service. In support of this conclusion, the examiner explained that the service treatment record was silent for tinnitus, and his hearing was within normal limits on his separation exam with no standard threshold shift evident. The examiner noted that there was no objective evidence of or documentation of hearing loss in the right ear until the 2011 VA examination, and thus, no objective evidence of onset of hearing loss or tinnitus in service of continuity of symptomology. The examiner cited the IOM study which found that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. According to the Noise Manual (2000), only seldom does noise cause a permanent tinnitus without also causing hearing loss. Since there is no objective evidence of complaint of or treatment for tinnitus in service, no objective evidence that there was hearing loss or standard threshold shift evident in service, and there is no objective evidence of noise injury in service, the examiner opined that a nexus cannot be made and it is less likely as not that the Veteran has hearing loss or tinnitus that arose during service or are otherwise related to service, to include noise exposure from his duties as an infantryman. The examiner further explained that while military noise exposure may be reported and conceded, noise injury, tinnitus, and hearing loss from such exposure is not. When it comes to the presumption of noise exposure, the examiner noted that an audiogram can be used to rebut this presumption. In the instant case, the examiner pointed out that military audiograms are available and serve to rebut that onset of hearing loss or noise injury occurring in service. The Veteran reported during the examination that his hearing loss started a few months after training in 1974. However, the examiner noted that service treatment records are silent for complaints of or treatment for hearing loss or tinnitus, that there was no objective evidence of noise injury in service, and that there was no objective evidence of continuity of symptomology. The examiner also pointed to the Veteran’s conflicting reports of onset of hearing loss and tinnitus, such as reporting in September 2011 of hearing loss and tinnitus over the past 10 years, while his active duty service was over 30 years ago. At other times, he reported constant bilateral tinnitus since service. While acknowledging the Veteran’s reports, the examiner opined that there is no objective evidence of noise injury in service and thus, no nexus to noise exposure or his military service. The examiner also reviewed the March 2018 private medical opinion by hearing instrument specialist J.P. The examiner noted that the hearing instrument specialist was not an audiologist, and the opinion provided did not reference any review of the service treatment record, did not indicate if speech recognition testing was performed, and did not provide an adequate rationale. As such, the examiner noted that the private medical opinion was speculative, and thus, should be given less probative value compared to the current and previous examinations provided by VA audiologists. The examiner also further addressed the articles submitted by the Veteran, noting that the articles do not overturn the conclusions of the IOM and the Noise Manual, and do not provide a nexus to service. For instance, with the article concerning how noise exposure can cause auditory and non-auditory health effects, the examiner noted that noise does not necessarily cause auditory and non-auditory health effects, and there is no objective evidence that military noise exposure caused any of those issues for the Veteran. The examiner noted that while military noise exposure may be reported and conceded, noise injury from the same is not. Further, regarding the article on age exacerbation of hearing loss in ears with cochlear damage from previous noise exposure, the examiner noted that there is no objective evidence that this Veteran experienced any cochlear damage in service or from military noise exposure. The examiner noted the service treatment record contradicts the findings of the article. The examiner noted that threshold sensitivity is the gold standard for quantifying noise damage, and since there is no evidence that hearing loss or significant threshold changes occurred in the Veteran’s military service, there is no objectively verifiable noise injury in service and no basis on which to conclude that hearing loss or tinnitus were caused by military noise exposure. Additionally, the examiner noted that the article submitted by the Veteran studied rodents, and that there are actually genetic and physiological differences between humans and rodents. The examiner noted that the study has not been proven to translate to humans and is speculative in that regard. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. Upon consideration of the evidence of the record, the Board finds that the probative evidence of record does not support service connection for bilateral hearing loss and tinnitus. The Veteran’s service treatment records are silent for complaints or treatments related to hearing loss and tinnitus, and notably, the Veteran’s audiogram upon separation was normal. In addition, at the time of his separation he specifically denied having had hearing loss or ear trouble. Additionally, the above VA medical opinions evaluated the Veteran and reviewed the record, to include the March 2018 private medical opinion and articles submitted, and still found that no nexus between the Veteran’s reported bilateral hearing loss and tinnitus and his active duty service. The Board has considered the Veteran’s statements, to include his assertions that his hearing loss and tinnitus is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., difficulty hearing and ringing in the ear; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by a trained medical professional based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. To the extent the Veteran has asserted his hearing loss and tinnitus began during service and have continued since, the Board finds these statements to lack credibility as they are in direct conflict with his report of medical history at separation and his report in 2011 regarding the onset of symptomatology. For the above reasons, the preponderance of the evidence is against the claims and service connection is denied. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew 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.