Citation Nr: 21013108 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-42 068 DATE: March 8, 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 or disease, to include in-service noise exposure. 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 or disease, to include in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. § §§ 1110, 1131, 5107 (2012); 38 C.F.R. § § § 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. § §§ 1110, 1131, 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 in the United States Army from March 1966 to March 1970. In March 2019, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See April 2020 supplemental statement of the case. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). For certain chronic diseases, including organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for bilateral hearing loss. The Veteran is seeking service connection for his hearing loss, which he contends is due to in-service noise exposure. In this case, the evidence of record establishes that the Veteran has a current bilateral hearing loss disability for VA compensation purposes. See October 2015 Private Medical Treatment Records; Janaury 2020 VA Examination Report; 38 C.F.R. § § 3.385. Regarding an in-service injury or event, the Veteran asserts that his military occupational specialty (MOS) exposed him to loud noises. The Veteran states that he worked as a Russian language voice intercept operator and listened to Russian military radio transmissions. The Veteran explains that the earphones he used did not have any built-in noise suppression protection. The Veteran expresses that there were times when he had to increase the volume to hear a unit located far away. The Veteran states that his ears were exposed to loud burst of static on every shift. The Veteran also expresses that he qualified on the rifle range in basic training and every year thereafter with the M-14 rifle. He asserts that the qualifications were completed with no ear protection. Service personnel records show that the Veteran’s MOS was as a traffic analyst, and a voice intercept operator. It is documented that the Veteran completed an education course in the Russian language. The military personnel records also indicate that the Veteran received an expert badge with the M-14 rifle. Based on the places, types, and circumstances of the Veteran’s duties noted in his records, the Board resolves all reasonable doubt and determines that the Veteran was exposed to loud noises. Therefore, an in-service injury or event has been established. For the reasons set forth below, the Board finds that the weight of the lay and medical evidence of record is against finding that the Veteran’s bilateral hearing loss was incurred in service or is otherwise related to service. The Board finds that the evidence weighs against a finding that the hearing loss disability began in service or that it manifested within one year of service separation. The Veteran’s May 2015 VA Form 21-526 reflects that he asserted that his hearing loss began in October 1967. However, service treatment records show no complaints, treatment, or diagnosis of bilateral hearing loss. The February 1970 service separation report of medical history shows that the Veteran denied current symptoms and history of hearing loss and ear trouble. To the extent that the Veteran now claims that hearing loss started in service, the Board finds that these assertions are not credible because they are contradicted and outweighed by the Veteran’s own contemporaneous reports at service separation denying hearing loss and ear trouble. As to the question of whether there is a nexus between the Veteran’s in-service noise exposure and his current bilateral hearing loss, a January 2020 VA examiner opined that it was less likely than not that the Veteran’s hearing loss was caused by or a result of his military service. The examiner noted that the Veteran’s MOS and his reports of exposure to loud noises during his active service. The examiner also noted occupational noise exposure, which included factory work, in which the Veteran reported was not loud and hearing protection was not required. The examiner further other recreational noise, such as attending a car race, minimal wood working and using lawn equipment and chain saws. The January 2020 VA examiner explained that the audiograms provide objective evidence of noise injury, and comparison of audiogram results help to determine time, course, and etiology of the injury. The examiner noted that the gold standard for determination of noise-related auditory damage is positive, permanent shift in auditory thresholds following an acoustic incident. Significant threshold shift (STS) is defined as an average of 10 db or greater shift at the 2000, 3000, and 4000 hertz (Hz), or a 15 db or greater shift at any single frequency at the 1000, 2000, 3000, or 4000 Hz. The examiner explained that a positive STS indicated worsening of thresholds. The January 2020 examiner included the results of the Veteran’s entrance and separation audiograms in the report, and noted that there was no permanent STS indicative of noise injury, and that the service treatment records were silent for any complaints, diagnosis, or treatment regarding any hearing difficulties. The examiner explained that in the absence of objective audiometric evidence of noise injury while in service, an affirmative opinion that the Veteran suffered some latent undiagnosed noise injury would seem to be utter speculation and would directly contradict the objective evidence of the record. In this regard, the Board notes that the examiner was not offering a speculative opinion; rather, a fair reading of the examination report, taken together with the lay and medical evidence of record, shows that the examiner’s opinion is that a positive nexus opinion in this Veteran’s case would be utter speculation. The examiner also noted a 2006 report published by the Institute of Medicine (IOM), and explained that the IOM committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The examiner stated that the IOM conclusion has not been sufficiently refuted by more recent studies. After a thorough consideration of the evidence of the record, the Board finds that the preponderance of the evidence is against the establishment of a nexus between the Veteran’s hearing loss and his service. The VA examiner provided supporting rationale as to why there was no nexus between the Veteran’s hearing loss and his noise-exposure, which was an absence of a significant threshold shift found in service. The examiner reviewed and addressed the relevant evidence of the record, to include the Veteran’s reports of miliary noise exposure. The examiner also addressed delayed onset hearing loss and referenced medical literature that stated that it was unlikely for that to have occurred. The Board acknowledges the Veteran’s assertions that his bilateral hearing loss is due to noise exposure while in service. Although lay persons are competent to provide opinions on some medical opinions, determining the etiology of hearing loss falls outside the realm of common knowledge of a lay person. The Veteran has not demonstrated the medical expertise required for this matter. See Jandreau v Nicholson, 492 F.3d 1372, 1376 (2007). Thus, the Board finds that the Veteran’s opinion is not entitled to significant weight as compared to the VA examination and opinion, which has determined that the Veteran's hearing loss is not related to his service. The examiner discussed the particulars of the Veteran’s medical history, his assertions and applied the relevant medical principles and literature to support the conclusion. The Board reiterates that the Veteran’s service treatment records are negative for any hearing loss symptoms during service, to include the hearing examination that was administered on separation. Finally, there is no evidence that he sought treatment for hearing loss during service or at separation. In summation, while the Board is sympathetic to the Veteran’s claim, based on the evidence of the record, as well as relevant law and regulations, the Board finds that service connection for bilateral hearing loss is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. 2. Entitlement to service connection for tinnitus. The Veteran contends that he currently suffers from tinnitus due to his in-service noise exposure. The evidence of the record indicates that the Veteran suffers from recurrent tinnitus. See January 2020 VA Examination Report. As noted above, the Board finds that the Veteran was exposed to military loud noise during his active service. Regarding whether there is a nexus, the January 2020 VA examiner opined that it was less likely than not that the Veteran’s tinnitus was a result of or caused by his service. The examiner explained that tinnitus can be a symptom of a noise-induced auditory injury, if there is objective evidence to support the presence of noise injury. The examiner repeated that the audiograms provide objective evidence of noise injury and that the Veteran’s audiograms did not show STS, and noted that the onset of the reported tinnitus is after military discharge and that the Veteran did not provide a clear nexus between the onset of tinnitus and his military service. The examiner noted that IOM report which stated that as the interval between noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by the other factors increases and that the delay of many years in the onset of noise-induced tinnitus following earlier noise exposure is extremely unlikely. Based on the evidence, the Board finds that the preponderance of the evidence is against the establishment of a nexus between the Veteran’s reported tinnitus and his military service, specifically in-service noise exposure. The examiner reviewed the evidence of the record, specifically the Veteran’s reports, and determined that a nexus has not been established. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Tinnitus is a type of disorder associated with symptoms capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). However, there is no evidence of the record suggesting a continuation of symptoms for tinnitus during and from service. The Veteran expressed that he did not know what tinnitus was until his 2015 private examination. The Veteran has not asserted, and the record does not otherwise show, that he started experiencing tinnitus, or ringing in the ears, during or since his separation from service. When asked about the onset at the January 2020 VA examination, he indicated that he noticed some type of noise when in completely quiet environments for “several years.” He does not specifically assert that he experienced those symptoms during his active service. As stated before, he just contends that his in-service noise exposure caused his current tinnitus. The examiner gives a sufficient explanation as to why that is not so, as supported by both the medical and lay evidence on the record. Accordingly, while the Board is sympathetic to the Veteran’s claim, based on the evidence of the record, the law and regulations, the Board finds that service connection for tinnitus is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.