Citation Nr: 21012779 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-39 379 DATE: March 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran is currently diagnosed with bilateral hearing loss disability per VA regulations and tinnitus. 2. Exposure to hazardous noise in service is conceded. 3. The Veteran’s current bilateral hearing loss disability, diagnosed decades after service, is not shown to be etiologically related to noise exposure during active service. 4. The Veteran’s tinnitus, diagnosed many years after service, is not shown to be etiologically related to noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 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 from September 1961 to September 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the claim for bilateral hearing loss and tinnitus. The Veteran timely filed a notice of disagreement and in March 2019 the Board remanded both claims for a new VA examination. In December 2020, the Board again remanded the claim due to non-compliance with the March 2019 remand directives and directed an addendum medical opinion be obtained. On review, the Board finds substantial compliance with its November 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The claim now returns to the Board for further appellate review. Service Connection - Pertinent Laws and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Tinnitus and sensorineural hearing loss are considered by VA to be an “organic disease of the nervous system,” and are “chronic diseases” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 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. 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. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is competent to report the onset and continuity of his or her current symptomatology, to include reduced hearing acuity.  See Layno, 6 Vet. App. 469- 470 (a Veteran is competent to report on that of which he or she has personal knowledge).  In addition, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Bilateral Hearing Loss and Tinnitus The Veteran contends that his bilateral hearing loss and tinnitus are related to service, specifically to hazardous noise exposure associated with his military occupational specialty (MOS). Additionally, the Veteran’s representative asserts that medical literature supports the Veteran’s claim for hearing loss diagnosed after service. See February 2021 Appellate Brief. For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. As an initial matter, the Veteran is diagnosed with bilateral sensorineural hearing loss for VA purposes, and tinnitus. See May 2018 VA Examination and Report. Therefore, the first element of service connection claims is met. In regard to an in-service injury, the Board concedes the Veteran was exposed to hazardous noise in service. The Veteran’s DD Form 214 reflects that his military occupational specialty (MOS) was that of a jet aircraft mechanic, which has a high probability of noise exposure. In correspondence to VA, the Veteran stated he worked on one and two engine fighter aircraft, did run-up and taxiing of aircraft for various tests, and worked on aircraft on alert status. See September 2020 Correspondence to VA. As such, hazardous noise exposure in service is conceded and the second element of service connection is met. Notwithstanding the current diagnosis and conceded exposure to hazardous noise in service, the Board concludes that service connection is not warranted for the reasons discussed below. Turning to the evidence, the Veteran’s service treatment records are silent for hearing complaints and his in-service audiograms reflected normal hearing. In a January 1969 VA examination for the Veteran’s tonsillitis, the examiner noted “hearing is good in both ears.” See January 1969 VA examination. In an April 2015 VA primary care treatment record, the physician noted hearing was fair and normal by conversation, and noted the Veteran was hard of hearing and was getting hearing aids through his former employer. See April 2015 VA Treatment Record. The Veteran had a VA audiology consultation in November 2016. The Veteran reported gradually reduced hearing in both ears and could not estimate the onset of his tinnitus. He also reported his civilian occupations and recreational noise exposure after service. See November 2016 VA Audiology Consultation. In May 2018, the Veteran was provided a VA audiology compensation examination in conjunction with his claim. The Veteran reported noise exposure in service, occasional recreational noise exposure after service, and civilian occupational noise exposure after service. After diagnosing bilateral hearing loss, the examiner, an audiologist, opined his hearing loss was less likely as not related to service, including conceded noise exposure, finding that although his MOS indicated a high probability of exposure to hazardous noise, there was no indication of auditory threshold shift or loss of hearing during military service based on review and comparison of enlistment and separation audiograms. In regard to tinnitus, the Veteran reported his tinnitus began years ago but he could not recall a specific date. The examiner opined that the tinnitus was at least as likely as not related to his hearing loss. See May 2018 VA examination and report. Another VA audiology compensation examination was provided in October 2019. The Veteran reported his hearing loss began over 50 years ago and continued to worsen and that he had trouble hearing people speak and understanding what was said on television. He also stated he was exposed hazardous noise in service, and he wore hearing protection, usually “plugs” or “muffs.” Historically, his employment included construction worker intermittently for 2 years; service station worker for 6 years; maintenance worker from 1977 to the early 1980s; and a bench mechanic for 15 years; and that for all post-service employment he wore hearing protection. He also reported recreational noise exposure. The examiner, an audiologist, opined his hearing loss was less likely as not related to service as there was no significant permanent shifts in hearing threshold beyond test variability from entrance to separation, no report of complaints or treatment for hearing decrease in service treatment records (STRs) or at separation, and he had a longstanding history of recreational and occupational noise exposure. In regard to tinnitus, the Veteran reported he was uncertain when he noticed the ringing, but noted it was some time in the 1970s or 1980s. The examiner opined the tinnitus was at least as likely as not a symptom associated with his hearing loss and less likely as not related to military noise exposure. The examiner stated that the onset of tinnitus was reported to be after separation from service, that there was no complaint of tinnitus in service or at separation, and that he had a longstanding history of recreational and occupational noise exposure. See October 2019 VA examination and report. An addendum VA medical opinion was obtained in December 2019. The examiner, an audiologist, acknowledged contacting the Veteran to determine the onset of his hearing loss, which the Veteran stated was sometime between the late 1960s and early 1970s. The examiner opined the hearing disability was less likely as not related to service, stating there was no significant permanent shift in hearing thresholds greater than normal measurement from entrance to separation, even after converting hearing thresholds from ASA to ISO-ANSI standard, and there was no report of complaints or treatment for hearing decrease in STRs or at separation. Further, the examiner noted though excessive noise exposure on active duty was conceded and literature from the World Health Organization suggested the effects of noise can “accelerate hearing deterioration later in life, even after the exposure was ceased,” the Veteran reported a longstanding history of occupation and recreational noise exposure immediately after service that was at least as likely as not contributing factor to his current hearing loss. Concerning tinnitus, the examiner reiterated the same findings and conclusions as in the October 2019 opinion. See December 2019 VA addendum medical opinion. Another VA audiology examination was obtained in December 2020. The VA audiologist opined that the Veteran’s bilateral hearing loss was less likely as not related to service. The examiner noted the separation audiogram indicated normal hearing upon separation. The examiner referenced Noise and Military Service: Implications for Hearing Loss and Tinnitus, which found that the most pronounced effects on pure-tone thresholds are measurable immediately following the exposure and an article from the American College of Occupational and Environmental Medicine which found there was insufficient evidence to support that previously noise exposed ears were not more sensitive to future noise exposure, and there was insufficient evidence to conclude that hearing loss due to noise will progress once the exposure is discontinued. In regard to the study referenced by the Veteran’s representative, the examiner noted that, while potentially groundbreaking, they were done on mice, and the examiner refenced an article that found studies on mice may not correlate well to humans, and that the studies do not point to quantitative decrease in hearing over time, i.e. audiometric thresholds, but suggest a qualitative decrease noting that there may be struggles processing speech and hearing in noise later on. The examiner concluded that the current peer reviewed literature did not support delayed onset of hearing loss, nor that hearing loss was progressive or cumulative. The examiner also opined that his diagnosed tinnitus was less likely as not related to service as the Veteran reported the onset of his tinnitus was in the 1970s or 1980s, 5 to 15 years after service. The examiner stated that while the idea of delayed-onset tinnitus is supported by some research, it is not widely accepted. The examiner referenced an article that stated as the interval between exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. The examiner found, given that the Veteran’s tinnitus was noted after service, and the significant amount of occupational and recreational noise exposure after service, it was as likely as not that his hearing loss was incurred after service, during the 1970s and 1980s, and that his tinnitus is the result of that hearing loss. Upon careful review of all the evidence, lay and medical, the Board finds that service connection for hearing loss and tinnitus on a presumptive basis is not warranted. The first evidence of any hearing difficulty after service is not shown until April 2015, at which time a VA physician noted the Veteran was hard of hearing and was getting hearing aids through his employer. See April 2015 VA Treatment Record. Notably, the examiner in the January 1969 VA examination for tonsillitis noted the Veteran’s hearing appeared to be “good.” Moreover, throughout the pendency of the appeal, the Veteran reported he was not sure when his disabilities began, but later stated his bilateral hearing loss began 50 plus years ago, as early as the late 1960s or early 1970s and continued to worsen, and his tinnitus began in the 1970s or 1980s; both after separation from service. The Board does not imply that the Veteran purposely gave inconsistent statements, but it may merely be that, with the passage of time, his recollections are not entirely accurate. For these reasons, the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) based on either chronic symptoms in service or continuous symptoms since service have not been met, and presumptive service connection for bilateral hearing loss and tinnitus is not warranted. Moreover, the Board finds that the weight of the evidence is against a finding of a nexus between the Veteran’s currently diagnosed disabilities and his active service. The Board considered the Veteran’s statement purporting to relate his currently diagnosed hearing loss and tinnitus to active duty. 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 etiology, as the etiology of hearing loss and tinnitus relates to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”).  In this regard, the Veteran’s statements are not competent. In contrast, all of the VA examiners, audiologists, opined that the Veteran’s bilateral hearing loss and tinnitus were less likely than not related to hazardous noise exposure during service. The examiners considered the Veteran’s lay assertions and the audiometric results found in his service treatment records, but rendered negative opinions supported by rationale explaining that the normal hearing at separation from service, along with the Veteran’s lay assertions regarding the onset of the disability, were against finding that the currently diagnosed disabilities were related to the acoustic trauma in service. In addition, the December 2020 VA examiner addressed the articles provided by the Veteran’s representative, as well as additional sources in support of his conclusion that the current peer reviewed literature did not support delayed onset of hearing loss or tinnitus. The Board concludes that the opinions of the VA audiologists are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As such, the VA examiner’s medical opinions outweigh the lay assertions in this case. There are no other medical opinions of record. (Continued on the next page)   For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for tinnitus, and the claims must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.