Citation Nr: 21014142 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-24 843 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 Veteran’s bilateral hearing loss was not shown in service or for many years thereafter, and is not otherwise etiologically related to service. 2. The Veteran’s tinnitus was not shown in service or for many years thereafter, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from September 1969 to February 1979, to include a period of active duty for training (ACDUTRA) from September 1969 to January 1970. These matters return to the Board of Veterans’ Appeals (Board) following the issuance of remand orders from the Board in August 2016, December 2018, and June 2020 so that the Regional Office (RO) could complete additional development. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran asserts that his bilateral hearing loss and tinnitus are related to his active duty service. He has specifically claimed that during training while in service, he did not use hearing protection and was in turn exposed to acoustic trauma. After a review of the evidence of record, the Board concludes that while the Veteran has a current diagnosis of bilateral hearing loss and tinnitus, the preponderance of the evidence weighs against finding that these disorders began during service or are otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.304, 3.307, 3.309. Regarding in-service noise exposure, the Veteran has reported in-service noise exposure in the form of acoustic trauma due to training with canons and field artillery as a drill sergeant. However, the Board notes that the Veteran’s service treatment records are silent for any signs, symptoms, or treatment for hearing loss or tinnitus. Specifically, the Veteran’s January 1970 active duty separation examination does not note hearing loss, tinnitus, or other ear related problems and the Veteran did not endorse any on his separation report of medical history. Moreover, the comparison of the Veteran’s entrance and separation audiometer tests does not demonstrate any significant tonal shift in hearing, both of which show his hearing is within normal limits, and his separation examination indicates better scores than his entrance examination. The Veteran’s post-service medical evidence does not demonstrate any symptoms or a diagnosis of hearing loss or tinnitus until approximately February 2012 and February 2014 respectfully. The Veteran, nor any of his treating physicians or those who have examined him, have indicated that the Veteran has experienced bilateral hearing loss or tinnitus since his time in active duty. Therefore, continuity of symptoms has not been shown based on the clinical evidence, as there is no indication of symptoms or a diagnosis within one year of the Veteran’s separation from service. Next, service connection may nevertheless be established if a relationship is otherwise demonstrated by sufficient competent evidence, including medical evidence and opinions. To this end, the Veteran was provided with VA examinations in February 2014, , January 2020, and November 2020. An addendum opinion was obtained in February 2017. Additionally, the Veteran has submitted a medical opinion from a private physician in March 2012. The Veteran’s private examination report indicates a diagnosis of bilateral sensorineural hearing loss, however, the Veteran specifically denied that he was experiencing tinnitus or its symptoms. The Board notes that when the Veteran submitted his initial claim for service connection in July 2011, he included a claim for tinnitus. His inclusion of this claim runs contrary to his statements to his private physician in regard to having tinnitus. The examiner noted that the Veteran’s hearing loss is typical for noise induced hearing loss and noted the Veteran’s in-service exposure to noise due to artillery and other munitions. The examiner noted that the Veteran was not exposed to similar noise in the intervening period between service and the examination. Overall, the examiner opined that the Veteran’s hearing loss was more likely than not related to active duty service. However, the Board finds this opinion to carry little weight when compared to the other clinical evidence of record. Specifically, the examiner did not discuss the Veteran’s employment at a mill for decades following service, at which the Veteran has attested to loud noise exposure. Additionally, the examiner did not discuss the Veteran’s in-service audiograms or the silence for these disorders in his service treatment records. Conversely, the Board places significant probative value on the opinions garnered from the VA examiners of record in February 2014, February 2017, January 2020, and November 2020. The February 2014 examiner endorsed diagnoses for bilateral hearing loss and tinnitus (for the first time in the Veteran’s medical records). The examiner noted that they could not provide an opinion as to the etiology of the Veteran’s bilateral hearing loss without resorting to mere speculation due to deficient in-service medical records. As far as the Veteran’s tinnitus is concerned, the examiner opined that it was less likely than not related to active duty service citing the decades long gap between service and diagnosis and the lack of substantiating clinical evidence. Similarly, the February 2017 examiner noted in their addendum opinion that the Veteran’s bilateral hearing loss and tinnitus were less likely than not related to active duty service. They cited the lack of tonal threshold shift beyond normal measurement variability as documented in the Veteran’s service treatment records. Additionally, they noted that there was not sufficient evidence to support the theory of delayed hearing loss or tinnitus within the medical community. The January 2020 examiner also opined that the Veteran’s bilateral hearing loss and tinnitus were less likely than not related to active duty service. The examiner noted the lack of significant tonal threshold shift demonstrated by the Veteran’s active duty service record audiograms, and an October 2011 document, specifically a hearing calculator worksheet, which showed the Veteran’s hearing within normal limits. Additionally, the examiner noted that the Veteran worked at a mill from 1978 until his 2012 retirement, the Veteran informed the examiner that he was awarded a settlement from this job for his hearing loss. The Board notes that the October 2011 hearing calculator worksheet is not an audiogram and does not appear to be related to specific VA, or privately administered hearing testing. The examiner should not have used it as part of the basis of their opinion since it is not a medical document. However, even absent the discussion of that document, the examiner’s opinion would not appear to be different as they used much more evidence to form the basis of their opinion. Finally, the November 2020 VA examiner proffered an opinion finding that the Veteran’s bilateral hearing loss and tinnitus were less likely than not related to active duty service. For the Veteran’s bilateral hearing loss, the examiner noted the lack of evidenced tonal shift in service and noted that the first evidence of hearing loss came in 2012, approximately 42 years following his last period of active duty. The examiner noted that the Veteran was awarded a settlement from his mill job for hearing loss and indicated that this pointed to his time at the mill as the most likely source of his hearing loss. Turning to the Veteran’s tinnitus, the examiner noted that there was no scientific basis to support the theory of delayed onset, especially given the length of time at issue. He indicated that the Veteran would have had a noticeable onset at or around the time of injury. As part of this claim, the Board recognizes the statements from the Veteran regarding the relationship between his hearing loss and tinnitus and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology such as decreased hearing sensations and/or ringing in the ears, he is not competent to provide a nexus opinion in this case. These issues are also medically complex, as they require knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d at 1377 n.4. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against his claims of service connection and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Veteran’s appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals