Citation Nr: 21014008 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-38 006 DATE: March 11, 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 preponderance of the evidence is against finding that bilateral hearing loss began during active service, or is otherwise related to an in-service injury or disease. 2. 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. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 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 from September 1978 to September 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020 and December 2020, the Board remanded the issues on appeal for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases (such as sensorineural hearing loss), will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. For VA purposes, 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, 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. 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus is denied. The Veteran contends that he has hearing loss and tinnitus due to his military service. In an August 2011 statement, he reported experiencing noise exposure from artillery units during field training exercises. In a July 2016 VA Form 9, the Veteran reported experiencing severe pain from ear plugs and being treated for ear pain during service. He asserted that a Cortisporin otic solution prescribed in service may have led to both his current hearing loss and tinnitus. The question for the Board is whether the Veteran has a current hearing loss or tinnitus disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of bilateral sensorineural hearing loss and tinnitus. Evidence shows that he had in-service noise exposure; however, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral sensorineural hearing loss and tinnitus began during service or is otherwise related to an in-service injury, event, or disease. Turning to the evidence of record, the Veteran’s service treatment records (STRs) show he sought treatment for a left earache, twice in October 1978. The October 27, 1978 treatment note shows the Veteran had decreased hearing, swollen canals, itching, earache, and was given Cortisporin (otic solution) to treat the earache. STRs include audiometric testing performed at his entrance into service as well as audiometric testing performed in April 1981 and June 1981. Although the Veteran contends the April 1981 test belongs to another veteran, there is no dispute regarding the June 1981 audiometric testing, which reveals normal hearing with no significant threshold shifts. The Veteran’s military records do not include a separation examination. At an October 2011 audiology consultation, the Veteran was seen for his complaints of hearing loss and during this appointment, he denied having tinnitus. The Veteran was afforded a VA examination in March 2012 and reported that he noticed bilateral hearing loss for about four to five years and that he worked in noisy areas of an insulation plant off and on for 2.5 years. He also reported that ear protection was not required and that he was not always in the noisy areas. He denied recreational noise exposure. Based on the audiogram and Maryland CNC results, the Veteran had normal hearing bilaterally for VA disability purposes, as set forth in 38 C.F.R. § 3.385. The examiner reported that the Veteran’s current hearing loss did not meet VA criteria for disability but noted a diagnosis for the Veteran’s right ear of sensorineural hearing loss. In January 2015, the Veteran underwent another VA audiology examination. The Veteran explained that he sometimes heard a long beep which would last about three to four minutes. He reported that this occurred occasionally (not every night) and he was not sure how long he had had it. The examiner opined that the Veteran’s hearing loss and tinnitus were less likely as not due to military noise exposure. The rationale, however, included consideration of an April 1981 audiogram, which was for another veteran. In his July 2016 VA Form 9, the Veteran asserted that his hearing loss may have been caused by the treatment prescribed for his ear pain during service. He also asserted that an April 1981 audiogram contained in his STRs was not in fact his audiogram. The Board acknowledged the Veteran’s contentions and ordered a new VA examination in a December 2018 remand. Pursuant to the remand, the Veteran was afforded a new VA examination in March 2020. The Veteran’s reported in-service noise exposure included artillery, field training exercises, rifle shooting, explosions and guns. There was no noise exposure reported post-service. He described the onset of his hearing loss as “gradually during service.” Both the audiogram and Maryland CNC revealed that the Veteran had bilateral hearing loss per 38 C.F.R. § 3.385. The examiner opined that the Veteran’s bilateral sensorineural hearing loss and tinnitus were less likely than not related to an in-service injury, event, or disease. The examiner reasoned that there was no complaint of or treatment for hearing decrease or tinnitus found in the Veteran’s STRs or at separation. The examiner also reported that there was no significant permanent shift in the Veteran’s hearing thresholds beyond test variability from entrance to separation. The examiner furthered that there was no precedent for delayed onset noise induced hearing loss. In September 2020 the Board remanded the appeal for another opinion because the March 2020 VA examiner’s rationale indicated that suggested that the Veteran had undergone an audiogram examination at separation; however, there is no record of a separation examination. The examiner also misstated that there was no complaint of or treatment for hearing decrease as an October 1978 treatment note demonstrates that the Veteran reported decreased hearing and tinnitus in his left ear. In October 2020, the VA examiner provided an addendum opinion which clarified her March 2020 opinion. The examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss and tinnitus incurred in or were caused by a claimed in-service injury, event or illness. The examiner’s rationale explained that the Veteran’s hearing was normal from enlistment to near separation in June 1981, with no evidence of threshold shift. The examiner noted that there was an STR note listing hearing loss due to otitis media and explained that the condition was a temporary medical issue unrelated to noise exposure. The examiner explained that there was no evidence of permanent hearing loss or threshold shift in service and that tinnitus was a known result of acoustic trauma and hearing loss. The examiner further explained that the Veteran’s VA examination from March 2012 revealed minimal hearing loss in his right ear and normal hearing in the left. In the Veteran’s December 2020 Appellate Brief, he asserted that the Cortisporin otic solution used to treat his earache during service could have caused his hearing loss. In support of his assertions, he referenced a warning included by the manufacturer, which purportedly states Neomycin can induce permanent sensorineural hearing loss due to cochlear damage, mainly destruction of hair cells in the organ of Corti. The Veteran contended that while rare, side effects of using Cortisporin include hearing loss and tinnitus as indicated by WebMD. He noted that the recent VA examiner did not consider this contention. As a medical opinion had not been provided regarding the effects of the Veteran’s seven-day use of the Cortisporin and his current bilateral hearing loss and tinnitus. In December 2020, the Board remanded the issues for an addendum opinion. In January 2021 a VA examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss and tinnitus were related to his reported treatment during service. The examiner noted that the Veteran’s MOS as a tactical wire specialist had a moderate probability of hazardous noise exposure. The examiner also noted that the Veteran’s June 1981 audiogram (three months prior to separation) was within normal limits, with no significant threshold shifts noted. The examiner referenced the Veteran’s March 2012 VA examination (30 years after separation) which showed normal hearing in the left ear through 4KHz, with a mild loss at 6KHz and 8KHz in the right ear. Regarding the Veteran’s assertion that his use of Cortisporin drops may have caused his bilateral hearing loss and/or tinnitus, the examiner explained that current medical literature supported the short term use of Cortisporin as safe, effective, and not linked to long-term delayed onset hearing loss and/or tinnitus. The examiner indicated that the Veteran’s use of the drops in October 1978 was acute and resolved without sequelae. The examiner explained how follow up audiograms during and post service were well within normal limits through 2012, over 30 years post-service and that any known symptoms or complications of medication use would have developed immediately during or shortly after treatment. The examiner stated that “hearing loss and/or tinnitus as a result of ototoxicity from Cortisporin otic drops happens when there is a rupture of the ear drum or patent pressure equalization tube” noting that there is potential risk where there is an open tympanic membrane. However, the Veteran's claims file was silent for any tympanic membrane compromise where the drops could have reached the middle ear and caused hearing loss and or tinnitus. The Board has carefully reviewed the lay and medical evidence in this case and finds service connection for hearing loss and tinnitus is not warranted. While the Veteran has a current diagnosis of hearing loss and tinnitus, and evidence shows noise exposure occurred during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnoses began during service or is otherwise related to an in-service injury, event, or disease. The Board acknowledges the Veteran’s lay contentions regarding noise exposure in service, and the onset and etiology of his hearing loss and tinnitus. However, his lay opinion that his current hearing loss disability is related to noise exposure in service is not competent. Determining the etiology of a sensorineural hearing loss disability is not a simple medical condition or determination, particularly when there is an extended time between noise exposure and onset of a hearing loss disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). For these reasons, the Veteran, as a layperson, is not competent to state that his current hearing loss disability, which was initially diagnosed over 30 years after active duty, is etiologically related to his active duty noise exposure. This is a complex medical determination. Consequently, the Board will rely upon the competent and probative VA medical opinions obtained in this case. Although the Veteran is competent to report symptoms of tinnitus, the Board does not find his statements regarding onset credible. Although the Veteran reported tinnitus in October 1978, which indicates that he knew what the condition was, there were no additional reports of tinnitus found in his STRs and no credible evidence of complaints since his discharge in September 1981. Indeed, the Veteran told the VA audiologist in March 2020 that his tinnitus began in or around 1979; however, this conflicts with an October 2011 VA treatment record and the March 2012 VA examination where he denied having tinnitus. While the Veteran is competent to report symptoms of decreased hearing acuity and tinnitus since service, his report of continuity of symptomatology is not credible. Service treatment records show sensorineural hearing loss was not noted during service, and no additional complaints of tinnitus or hearing trouble were noted after the acute treatment in October 1978. Indeed, the Veteran underwent a retention examination in October 1982, a little over a year after his discharge from active duty service, and the Report of Medical Examination (RME) indicated that his ears, to include auditory acuity was ‘normal.’ In his Report of Medical History, the Veteran marked ‘don’t know’ for hearing loss; did not report tinnitus; and the physical profile indicated that his hearing was normal. It stands to reason, if the Veteran had sensorineural hearing loss within a year of his discharge from military service, his October 1982 RME would have at the very least reported that a hearing problem was present. Additionally, a hearing loss disability for VA compensation purposes was not diagnosed during the March 2012 VA examination. Further, the Veteran denied recurrent tinnitus at his March 2012 VA examination. During his January 2015 VA examination, he described his tinnitus as occurring occasionally and reported that he was not sure how long he had it. Thus, the Veteran’s recent assertions that he experienced symptoms of hearing loss and tinnitus since service discharge is not found credible. For these reasons, presumptive service connection based on either chronicity or continuity of symptomatology is not warranted. Further, the competent and probative VA medical opinions are against a finding of causal nexus. None of the VA examiners’ opinion provided a causal nexus between the Veteran’s current hearing loss disability or tinnitus and his noise exposure during active duty. The nexus opinion from the January 2015 examination report will not be considered in the adjudication of the appeal. As the Board explained in its December 2018 remand for a new VA audiological examination and opinion, the April 1981 test lists this Veteran’s social security number and date of birth, but also lists the name of a different veteran and the wrong military occupational code. The nexus opinion from the March 2020 VA examination report also has not been considered in the adjudication of the appeal. The examiner’s method of determining whether a permanent threshold shift existed was unclear since the Veteran’s military records did not include a separation examination. Also, the examiner’s report that there was “no complaint of tinnitus in STRs” was a misstatement of fact. The nexus opinions received in October 2020 and January 2021 are adequate to resolve the matter of whether a causal nexus exists between the Veteran’s hearing loss and tinnitus and his military service. These unfavorable nexus opinions are comprehensive, supported by cogent rationale, and based on an accurate medical history. For these reasons, they are persuasive. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As there is no favorable, competent and probative medical opinion to the contrary, the preponderance of the competent and probative evidence is against the claim and the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for a bilateral hearing loss disability and tinnitus is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.