Citation Nr: 21013827 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-13 843 DATE: March 10, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest during active service and an organic disease of the nervous system (sensorineural loss) was not manifest within one year of separation. A bilateral hearing loss disability is unrelated to service. 2. Tinnitus was not manifest during service and an organic disease of the nervous system was not manifest within one year of separation. Tinnitus is not related to service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to September 1971. Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability 2. Entitlement to service connection for tinnitus Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system, which are identified as “chronic diseases” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). “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.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). The Veteran asserts that his bilateral hearing loss disability and tinnitus are the result of in-service exposure to hazardous noise, specifically while serving as an armor crewman in Vietnam. Personnel records are consistent with his reports and the Board accepts that the Veteran was exposed to hazardous noise while in service. The Board does note that service records do not indicate that the Veteran was in combat and he does not assert that his hearing loss disability and tinnitus are related to combat. As such, 38 U.S.C. § 1154 (b) is not applicable. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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, 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. Medical evidence of record indicates that there is a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 and a diagnosis of tinnitus. Service treatment records do not document any relevant complaints, symptoms, treatment, or diagnoses. Audiometer readings were recorded at both the enlistment and separation examinations. The Veteran’s enlistment examination was performed in December 1969. As it is unclear whether the thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The enlistment examination documents the following thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 N/A 5 LEFT 15 5 5 N/A 5 If the ASA standards were used, the conversion to the ISO-ANSI would be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 10 N/A 10 LEFT 30 15 15 N/A 10 The Veteran underwent audiological testing at his August 1971 separation examination. It is Board policy to assume that the ISO-ANSI standard was used in testing after December 31, 1970. The results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 N/A 0 LEFT 0 0 0 N/A 0 Even if it were assumed that the separation examination was performed in accordance with the ASA standards, there would be no hearing loss or hearing loss disability upon separation if the conversions were used. Clinical evaluation of the ears and ear drums was normal upon separation.   The first objective evidence of a hearing loss disability under the provisions of 38 C.F.R. § 3.385 is a December 2014 VA audiological examination. The Board does note June 1977 and December 1978 post-service occupational audiograms submitted by the Veteran. The audiogram recordings appear to show thresholds above 40 decibels in the range of 6000 hertz, but it does not show hearing loss disability in the ranges relevant to section 3.385. The Veteran also submitted a January 1977 post-service occupational audiometric history in which he specifically denied a history of excessive ringing of the ears and ear injury. The December 2014 VA examiner opined that the Veteran’s current hearing loss disability was less likely than not related to his active service. The examiner cites service treatment records, normal hearing upon separation, and the lack of any significant threshold shift. In addition, the examiner references a 2006 Institute of Medicine (IOM) study on military service for hearing loss and tinnitus. The examiner notes that the study “concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was ‘unlikely.’ The VA examiner opines that the Veteran’s hearing loss is more likely due to post-service occupational noise exposure and/or progressive hearing loss due to the normal aging process. With respect to the Veteran’s tinnitus, the examiner concluded that it was less likely than not related to active service. The examiner cites service treatment records and normal hearing upon separation. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the December 2014 VA medical opinions that the Veteran’s hearing loss and tinnitus are less likely than not related to his active service as highly probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds these medical opinions to be highly probative as they are adequately supported by additional rationale. In finding the December 2014 VA medical opinions to be highly probative, the Board notes the decision of the U.S. Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). In McCray, the Court determined that when an opinion relies on the 2005 Institute of Medicine (IOM) report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus, the Board must assess the underlying medical text evidence when it may affect the probative value and adequacy of the medical opinion. The IOM report at issue states there was 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. Id. Pursuant to McCray, if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if an issue is raised by the veteran or reasonably raised by the 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. Here, the Board finds that the probative value of the December 2014 VA medical opinion is not diminished by its reference to the 2006 IOM study. The examiner’s rationale does not rest solely on the IOM study, but also focuses on service treatment records and the lack of a threshold shift. In addition, the examiner makes clear that the findings of the IOM were based on the “current understanding of auditory physiology.” While current studies may not be dispositive, the examiner makes clear that the current understanding indicates that it is “unlikely” that hearing loss would occur years after the noise-exposure due to what is currently understood with respect to the recovery process of the ear in the aftermath of traumatic noise exposure. As such, the examiner states unequivocally that the best available medical science at the time finds that such a delayed onset of hearing loss is unlikely. As such, the examiner made clear the potential qualifiers and contradictions of the medical evidence used to support his opinion. The Board has considered the lay statements of the Veteran regarding the hearing loss disability and tinnitus. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner’s opinions, which were based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner’s medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of either hearing loss disability or tinnitus during active service, or within a year of separation. The Veteran separated from active service in September 1971. Hearing loss and tinnitus were not noted during service. The Veteran did not have characteristic manifestations sufficient to identify the disease entity. 38 C.F.R. § 3.303 (b). Objective medical testing did not document a hearing loss disability until approximately 43 years after separation. The June 1977 and December 1978 post-service audiograms submitted by the Veteran do not show a hearing loss disability in accordance with section 3.385. In addition, the evidence does not show an onset of tinnitus for many years after separation and the Veteran specifically denied ringing of the ears in a January 1977 post-service medical history. Here, there is no reliable evidence of hearing loss, hearing loss disability, or tinnitus during service or within one year of separation.   In sum, the Board finds that the preponderance of the evidence is against the claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus. The claims must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.