Citation Nr: 21016195 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 18-08 915 DATE: March 22, 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 service connection for bilateral hearing have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1137, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to March 1967. This case is on appeal before the Board of Veterans’ Appeals (Board) from July 2015 and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. These matters were previously before the Board in September 2018, at which time it issued a decision denying entitlement to service connection for both bilateral hearing loss and tinnitus. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the Court approved a Joint Motion for Partial Remand (JMPR), which ordered the Board to (1) fulfill its obligations with regard to the duty to notify and the duty to assist and (2) correct the inadequacies in a June 2015 VA examination. The Board subsequently remanded the claims for compliance with terms of the JMPR in November 2019. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system, which include sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran contends his bilateral hearing loss and tinnitus is the result of acoustic trauma experienced in-service. Specifically, he contends that he was regularly exposed to gunfire and cannon fire without ear protection. See January 2017 Statement in Support of Claim. Factual Background The Veteran’s service treatment records are silent as to complaints, treatment, or diagnoses of hearing loss or tinnitus. While he endorsed ear, nose, or throat trouble on the separation Report of Medical History, this was in reference to treatment for sinus issues. Hearing acuity was normal upon separation from service in 1967. Following service, the Veteran underwent VA examinations in July 1967, November 1972, November 1980, January 1989, and August 1990. There was no mention of, or objective findings related to hearing loss or tinnitus. The Veteran denied having hearing loss in a June 2005 VA treatment record. In fact, the first complaints of hearing loss or tinnitus are not noted in until October 2014, at which time the Veteran reported having hearing loss and tinnitus “for a long time.” See VA ENT Consult. VA subsequently received his formal claims for hearing loss and tinnitus disabilities in March 2015 and November 2015, respectively. The Veteran subsequently underwent a VA audiological examination in June 2015. He reported an onset of hearing difficulty and tinnitus “for several years.” As noted in the Board’s previous remand, the parties to the August 2019 JMPR determined that the June 2015 VA opinion was inadequate; it will thus not be further discussed here. In a December 2016 statement, the Veteran’s sister, F.P., stated that the Veteran’s hearing was not as good as it had been prior to service and that he had complained about some noises and ringing in his ears. She stated she believed that his hearing loss was caused by loud noises from firing guns in-service. In a January 2017 statement, the Veteran’s brother, M.C., stated that both he and other family members noticed that the Veteran had difficulty hearing after service. He stated that the Veteran also complained of crackling sounds and constant ringing in his ears. M.C. stated that he believed the Veteran’s hearing loss was primarily caused by his exposure to constant sound of loud gunfire during service. The Veteran submitted an article from the Journal of Neuroscience in support of his claims. The article indicates that acoustic overexposures causing moderate, but completely reversible threshold elevation, leave cochlear sensory cells intact, but cause acute loss of afferent nerve terminals and delayed degeneration of the cochlear nerve. This suggests that noise-induced damage to the ear has progressive consequences. The Veteran underwent another VA audiological examination in December 2019. He reported the onset of hearing loss as the late 1960’s and the onset of tinnitus as in the last 10 years. The examiner indicated that there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for either ear in service. The examiner opined that the Veteran’s bilateral hearing loss was less than 50 percent probability caused by or a result of an event in military service. The examiner explained that there was no objective evidence of permanent auditory damage of active duty from the conceded noise exposure. The examiner further explained that “although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone...The evidence is against a nexus in this case.” With respect to tinnitus, the December 2019 examiner opined that such was at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner further reasoned that the onset of tinnitus was reported by the Veteran to be post-separation and that there was no report of tinnitus in the STRs, at separation, or in the medical records until the time of the claim. The examiner stated that the current literature did not support late onset noise-induced tinnitus. An addendum to the December 2019 was completed in November 2020. The examiner noted that all evidence of record was considered including lay statements from the Veteran and his siblings, as well as the article from the Journal of Neuroscience (i.e., the Kujawa and Liberman study). The examiner confirmed the previous opinion, i.e., that it was less likely than not that the Veteran’s hearing loss was the result of noise exposure on active duty. With regard to bilateral hearing loss, the VA examiner’s rationale was as follows: The Veteran enters the military with normal hearing. His separation hearing exam shows normal hearing that is within test variability. Although the Veteran provided buddy statements from his siblings, normal hearing at separation is objective evidence of no permanent auditory damage sustained on active duty. According to Noise and Military Service: Implications for hearing Loss and Tinnitus, "No Longitudinal studies have examined patterns of hearing loss in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of noise exposure. The Committee's understanding of the mechanisms and processes involved in the recovery from noise exposure suggests, however, that a prolonged delay in the onset of noise-induced hearing loss is unlikely (2005)." They also go on to say "The evidence from laboratory studies in humans and in animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days." A recent publication from the American College of Occupational and Environmental Medicine states that there is insufficient evidence to support that "previously noise exposed ears are not more sensitive to future noise exposure (2018)." They also go on to state: "There is insufficient evidence to conclude that hearing loss due to noise will progress once the noise exposure is discontinued. This is primarily based on a National Institute of Medicine report which concluded that, on the basis of available human and animal data, it was felt unlikely that such delayed effects occur (2018)." Given the above, it is less likely than not that his hearing loss is the result of noise exposure on active duty. With respect to the medical study submitted by the Veteran, the examiner stated the following: With regards to the studies by Kujawa. The studies by Kujawa and Liberman from 2009 and 2006 suggest a connection between noise and delayed onset hearing loss. These studies discuss the fact that hair cell loss following hazardous noise exposure happens proximal to the exposure; however, spiral ganglion (SGN) cell loss is not seen for weeks and/or months. The initial study in 2006 showed that young mice exposed to hazardous noise had threshold shifts 2 weeks after exposure, whereas older mice did not. Both groups after 96 weeks displayed cochlear degeneration that was greater than the non-exposed groups suggesting that early exposed ears of mice were more vulnerable to aging. The 2009 Kujawa study was similar, however it took a deeper look at the mice's closer to the initial noise exposure (following temporary threshold shifts). Similar results from 2006 were noted. While the Kujawa and Liberman studies are potentially groundbreaking, they were done on mice. Jensen et al in a similar study says the following regarding animal studies: "In general, animal experiments may not directly extrapolate to humans because human SGNs have distinctive features, such as lack of somatic myelination, and sharing of myelin sheaths by multiple SGN cell bodies (2015)." Although Kujawa and Liberman show that noise exposed ears can struggle processing and in noise later on, these studies were performed on mice and may not correlate well to humans. It should also be noted that the Kujawa studies do not point to a quantitative decrease (audiometric thresholds) in hearing over time, they suggest a qualitative decrease. Marshal Chasin AuD wrote the following on the subject: "Temporary hearing loss can no longer be considered to be a benign temporary audiometric characteristic. Although it has not been established that TTS can be a predictor of future hearing loss, its presence does point to sometimes subtle neural pathologies that may result in future communication degradation (2017). The November 2020 VA examiner went on to explain: It has not yet been established that noise loud enough to cause temporary threshold shifts can cause future hearing loss. It has only been established that subtle neural changes resulting from noise may result in future communication degradation. Jensen et al further states that despite the strong suggestion of cochlear synaptopathy in people with otherwise normal thresholds, a definitive proof of synaptopathy is lacking because ABR measurements in people cannot yet be complemented with direct visualization and quantification of cochlear neurons and their synapses (2015). The test referenced above (ABR) is used a lot in these studies. The Auditory Brainstem Response test is an objective test that measures evoked potentials from earphones placed in your external ear producing a sound that travels through the middle ear, cochlea, VIII nerve, the brainstem and is measured via electrodes placed on your ear, scalp and or forehead. In order to know if these test results would have been reduced due to previous noise exposure, a baseline test would be necessary. ABR testing is not currently done prior to military service and was not done prior to the Veteran's active time period. Given that the reference Kujawa study was done on mice and not humans, there is no evidence to show that previously noise exposed ears will show decreased thresholds later on (following cessation of noise exposure) and that the testing used in these studies is and was not readily available to establish baselines, a nexus is not established for hearing loss related to noise exposure on active duty. With respect to the Veteran’s tinnitus, the VA examiner again found that it was less likely than not the result of noise exposure on active duty. He reasoned the following: There are no complaints of tinnitus in the claims file while on active duty. Although the Veteran provides credible lay testimony from his siblings and himself, the evidence in this case does not support a nexus for delayed onset tinnitus. Per Humes, "As the interval between the exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. A more complete understanding of the mechanisms by which tinnitus is generated will be needed for the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected (2005)." Given that the Veteran's tinnitus was noticed 40+ years after service, a nexus is not established for tinnitus due to noise. Analysis The Board concludes that, while the Veteran has bilateral hearing loss and tinnitus, which are chronic diseases under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309 (a), they were not shown as chronic in-service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and were not noted in-service with attributable continuity of symptomatology. As noted above, STRs are silent with respect to any complaints, findings, or diagnoses of hearing loss and/or tinnitus. The January1967 service examination prior to discharge shows normal hearing acuity. Post-service VA examinations conducted July 1967 and November 1972 make no mention of hearing loss or tinnitus complaints/symptoms. Post-service VA and private clinical records do not document any reports of impaired hearing or tinnitus symptoms until approximately October 2014, decades after his separation from service and well outside of the applicable presumptive period. Importantly, the first medical evidence that the Veteran met the criteria for left and right impaired hearing for VA purposes was the October 2014 ENT VA Consult and the June 2015 VA examination, respectively. To the extent that the Veteran (and/or his siblings) has alleged a continuity of bilateral hearing loss and/or tinnitus since military service, the Board finds such statements to be competent, but not credible as they are inconsistent with the other contemporaneous evidence of record. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record). Indeed, the Veteran did not report hearing loss or tinnitus at the time of his January 1967 separation from active duty service. Again, a reference to “ear, nose, or throat trouble” was in express reference to sinus problems. Objectively, his hearing acuity was normal on separation. The Board acknowledges that the Veteran has alleged hearing loss/tinnitus treatment at the Bronx VAMC shortly following service in 1967. An exhaustive search for those records was conducted and they were deemed unavailable for review (exclusive of records obtained from 1986 to 1991). The Veteran was notified accordingly. See September 2019 Correspondence Letter. Nevertheless, a VA general examination conducted just 4 months after separation from service made no mention of hearing loss or tinnitus problems, nor did the contemporaneous claim for service connection. VA treatment records from the Bronx VAMC dated from 1986 to 1991 are likewise silent for complaints, treatment, and/or diagnoses of hearing problems, as are VA examinations conducted in 1972, 1980, 1989, and 1990. The record also contains post-service private treatment records that fail to document any such complaints. In a June 2005 VA treatment record, the Veteran expressly denied having hearing loss. In October 2014, he described the onset of his hearing difficulties as “gradual.” During the June 2015 VA audiological examination, he reported an onset of hearing difficulty and tinnitus “for several years,” however, on VA examination in December 2019, he reported the onset of hearing loss as the late 1960’s and the onset of tinnitus as in the last 10 years. With consideration of the foregoing, the Board finds the Veteran's current statements (and/or those of his siblings) regarding a continuity of hearing loss and/or tinnitus symptomatology since service to be inconsistent with the contemporaneous evidence of record as well as his prior statements. In so finding, the Board is not questioning the honesty or moral character of the Veteran or his siblings. The Veteran and his siblings are attempting to recollect events that transpired a long time ago and the passage of time, along with the inconsistencies noted above, compels the conclusion that they are not accurate historians regarding these matters. See Caluza, supra. Therefore, the Board cannot assign significant probative weight to these lay statements. Rather, the Board gives more probative weight to competent medical evidence outlined above and the December 2019 VA examination with November 2020 addendum discussed further below. In short, the preponderance of the evidence is against a finding that the Veteran’s bilateral hearing loss and tinnitus were chronic in-service, manifested to a compensable degree in-service or within the applicable presumptive period, or that continuity of symptomatology existed since service. However, service connection for bilateral hearing loss and tinnitus may still be granted on a direct basis. In this case, the preponderance of the evidence is also against finding that a medical nexus exists between the Veteran's hearing loss and tinnitus and an in-service injury, event or disease. Again, the December 2019 and November 2020 VA examiners unequivocally opined that the Veteran's bilateral hearing loss and tinnitus were less likely as not related to an in-service injury, event, or disease, including reported in-service noise exposure. In arriving at this conclusion, the November 2020 examiner, in particular, provided an extremely lengthy and detailed rationale (outlined in its entirely above), citing to in-service findings, post-service findings, lay statements from the Veteran and his siblings, and various medical studies. The examiner also expressly addressed the Journal of Neuroscience article (Kujawa study) and discussed its inapplicability to the current case. The opinions were factually accurate, well-reasoned, and contained clear conclusions and supporting data. For these reasons, the Board finds the December 2019/November 2020 VA opinions to be highly probative as to the issue of nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, there are no medical opinions of record to the contrary. Lastly, the Board acknowledges the Veteran’s (and his siblings’) sincere belief that his bilateral hearing loss and tinnitus are related to an in-service injury, event, or disease, including reported inservice noise exposure; however, neither the Veteran nor his siblings have been shown as competent to provide a nexus opinion in this case. Indeed, the issues are medically complex and require specialized medical knowledge and the ability to interpret audiogram findings. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the December 2019 VA medical opinion with November 2020 addendum. For all the foregoing reasons, the Board finds that the claims for service connection for bilateral hearing loss and tinnitus must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.