Citation Nr: 21016150 Decision Date: 03/20/21 Archive Date: 03/20/21 DOCKET NO. 16-05 603 DATE: March 20, 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 left ear hearing loss did not have its onset in service, is not otherwise related to an in-service injury or disease and did not manifest to a compensable degree within a year after separation from service. 2. The Veteran did not have a diagnosis of right ear hearing loss for VA purposes. 3. The Veteran’s current tinnitus did not have its onset in service, is not otherwise related to an in-service injury or disease and did not manifest to a compensable degree within a year after separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1110, 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. §§ 1112, 1110, 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 April 1969 to March 1971. The Veteran died in May 2018. The appellant filed a request for substitution of claimant based on her husband’s death pursuant to 38 U.S.C. § 5121A, and this request was granted. See April 2020 notification letter. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In the January 2016 VA Form 9, Substantive Appeal, the Veteran declined an optional Board hearing, and the appellant has not requested a Board hearing. These claims were remanded for additional development in October 2020, and there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Additionally, in Fountain v. McDonald, 27 Vet. App. 258 (2015), the United States Court of Appeals for Veterans Claims (Court) determined that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For purposes of applying the laws administered by VA, the criteria for hearing impairment to be considered as a disability is when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus is denied. The Veteran alleged that his bilateral hearing loss and tinnitus are the result of his in-service exposure to acoustic trauma while serving in Vietnam. Regarding the first element of service connection, a current disability, the Board notes that the Veteran is competent to state whether he has, or has had, tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Moreover, an October 2014 VA audiological evaluation revealed hearing loss in the left ear for VA purposes, as discussed below. 38 C.F.R. § 3.385. As current tinnitus and left ear hearing loss has been established, the question on these issues becomes whether such disabilities are related to the Veteran’s active duty service. The most probative evidence indicates that they are not. Service treatment records (STRs) are silent as to any complaints, diagnoses, or treatments for tinnitus and/or bilateral hearing loss. The Veteran’s April 1969 entrance examination showed that his hearing was within normal limits by audiogram. The March 1971 separation examination shows that the Veteran’s hearing was tested using the whisper test. The examination shows that the Veteran’s hearing was tested by whispering and speaking to him from 15 feet away. The separation examination shows only a whisper test, and no audiograms. Here the Board notes that the whisper test (or speaking to him from 15 feet away) is not very reliable, and those results do not assist in determining the extent of change in the Veteran’s hearing loss levels during his service. See Fagan v. Shinseki, 573 F.3d 1282, 1284 (Fed. Cir. 2009) (quoting a VA examiner’s statement that, although Mr. Fagan did not exhibit signs of hearing loss during the whisper’ test at discharge from the military, a “whisper test does not provide frequency or ear specific information and therefore does not rule out, or confirm, high frequency hearing loss”). In a September 2002 VA progress note, a review of systems showed no hearing loss or tinnitus. VA treatment records dated April 2003 to April 2012 show the Veteran’s hearing status was good. An April 2003 audiology note indicated the Veteran passed a puretone screening and no further testing was required. A May 2013 note indicated the Veteran’s hearing status was fair. The Veteran underwent a VA audiological consultation in October 2014. The Veteran reported a gradual decrease in hearing and longstanding tinnitus which has now become more noticeable. The stated he has difficulty hearing his family even when they are at a close distance. He also reported difficulty hearing conversation in noisy environments, on the phone, and the television. The Veteran reported a history of noise exposure to include military noise, occupational noise from machinery, and recreational noise from target shooting. Puretone testing showed mild to moderate high-frequency hearing loss in the left ear, and essentially normal hearing on the right. A November 2014 VA audiological examination notes military noise exposure and reflects the Veteran’s reports of tinnitus that had been ongoing for “years.” The Veteran reported military noise exposure without the use of hearing protection and denied civilian occupational and recreational noise exposure. The Veteran was administered a puretone evaluation; however, the examiner determined the puretone test and word recognition scores were not valid. The examiner stated it is difficult to provide an opinion regarding the etiology of the Veteran’s right and left ear hearing loss and tinnitus, without resorting to speculation due to invalid and inconsistent responding on the examination. The Veteran’s word recognition scores decreased significantly, compared to an audiogram performed less than one month ago. The examiner noted that this change is more than expected for that period of time. Subsequent to the October 2020 Board remand, an additional VA opinion was obtained in November 2020. The examiner reviewed the claims file and found that the entrance examination indicated normal hearing for both ears. While separation examination was a whisper test and not puretones, the Veteran had normal hearing, per an audiology note as of April 2003, and had essentially normal hearing in the right ear, and mild-to-moderate high frequency hearing loss in the left ear as of October 2014. The November 2014 VA examination yielded inconsistent results that did not reflect previous testing just two weeks prior with no report of significant decline. The October 2014 evaluation did not state if speech discrimination testing was completed using Maryland CNC testing. While the same list (Maryland CNC versus other lists), should be used for calculating statistically significant changes within a patient, for instance, a score of 96 percent versus 82 percent being statistically significant change, even if another word list (i.e., W-22) is used, there should not be a difference of 96 percent to 60 percent without a significant complaint of change from the Veteran. The Veteran was also not consistent in puretone testing results, and results reported were the most forthcoming the Veteran would be. Therefore, the VA examiner concluded it was less likely than not that any hearing loss was related to military noise exposure. The Veteran reported tinnitus at the November 2014 VA examination, however, he did not state the onset of symptoms. The Veteran had significant noise exposure post service, and STRs are inconclusive for reports of tinnitus prior to 2014. Though excessive noise exposure on active duty is conceded and tinnitus is reported, there is no nexus of auditory damage on active duty to relate current report of tinnitus to military noise. Initially, the Board notes that the Veteran has never had a diagnosis of right ear hearing loss for VA purposes. See 38 C.F.R. § 3.385. The October 2014 VA audiological consultation indicated the Veteran’s right ear was essentially normal. Although the November 2014 VA examination indicated the Veteran had a right ear hearing loss for VA purposes, the examiner found the examination was invalid with inconsistent responding on the examination. The November 2020 VA examiner also determined that both the frequency thresholds and speech discrimination testing of the November 2014 VA examination was inconsistent. As such, the only competent and credible audiological evaluation is the October 2014 VA evaluation, which showed the Veteran’s right ear was essentially normal. As noted in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the threshold for normal hearing is from 0 to 20 decibels. Furthermore, the Board notes that a December 2014 VA progress note also shows the Veteran had a unilateral hearing aid for his left ear. Therefore, the Board finds that evidence of a right ear hearing loss disability under 38 C.F.R. § 3.385 has not been presented during the appeal period; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The claim of entitlement to service connection for right ear hearing loss is denied. The Board acknowledges that the Veteran and his spouse have submitted lay statements describing the Veteran’s diminished hearing acuity. These statements are competent to the extent that they describe each witness’ observations and personal experience, however, they are not competent to determine whether the Veteran experienced hearing loss for VA compensation purposes, which requires the use of diagnostic testing, such as audiograms and speech discrimination testing. Thus, these lay statements do not establish the presence of right ear hearing loss under 38 C.F.R. § 3.385, and left ear hearing loss is being conceded, as described below. Although puretone thresholds were not provided with the October 2014 VA audiological evaluation, the Board gives the Veteran the benefit of the doubt that he had a left ear hearing loss. Nonetheless, the Board finds that service connection for left ear hearing loss and tinnitus is not warranted. The Board has first considered whether service connection for tinnitus and/or left ear hearing loss is warranted on a presumptive basis, to include on the basis of continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested such a condition to a compensable degree during service or within the year following his discharge from active duty service. Service treatment records are negative for complaints, treatments or diagnoses related to tinnitus and/or hearing loss. In a September 2002 VA treatment record, the Veteran denied the presence of hearing loss or tinnitus. Moreover, hearing loss for VA purposes in the left ear was not shown until the October 2014 VA audiological consultation. Therefore, the Board finds that presumptive service connection for tinnitus and/or left ear hearing loss as an organic disease of the nervous system, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct service connection, a November 2020 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s tinnitus and/or left ear hearing loss was caused by or a result of military noise exposure. The examiner reasoned that there were no complaints of hearing loss or tinnitus in service treatment records or at separation from service and a puretone test dated in 2003 was negative for hearing loss. The examiner noted excessive noise exposure on active duty was conceded but that there was no nexus of auditory damage on active duty to relate the Veteran’s left ear hearing loss or reports of tinnitus to military noise. This opinion had clear conclusions and supporting data, as well as a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary probative opinion of record. The Board has also considered the Veteran’s statements in support of his claims. While he was competent to report his in-service acoustic trauma and describe his symptoms, the Board finds he was not competent to offer an opinion as to whether such disorders are related to any instance of his service since he did not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology of his tinnitus and/or left ear hearing loss, and, consequently, his opinion on such matters is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see e.g. June 2015 Notice of Disagreement. His claims of continuous symptoms since service are disproven by the September 2002 VA treatment record documenting no presence of hearing loss or tinnitus, and the VA treatment records from April 2003 to April 2012, which consistently listed the Veteran’s hearing status as “good.” Ultimately, based on a thorough review of the electronic claims file, the Board finds that the preponderance of evidence rests against the Veteran’s claims. Accordingly, the appellant’s appeal seeking service connection for the Veteran’s claimed tinnitus and bilateral hearing loss must be denied. The benefit of the doubt doctrine is not application here as the preponderance of the evidence rests against the Veteran’s claims. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. The Board acknowledges the Veteran’s honorable service to our country and is sympathetic to the appellant’s circumstances; however, the Board must apply the law as it exists. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). The Board is grateful to the Veteran for his honorable service and regrets that a more favorable outcome could not be reached for the appellant. M. Galante Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.