Citation Nr: 21021704 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-16 823 DATE: April 13, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s current bilateral hearing loss is the result of his conceded in-service noise exposure. 2. The preponderance of the evidence is against a finding that the Veteran’s tinnitus is the result of his conceded in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1968 to September 1972. He had additional Naval Reserves service. At a November 2020 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran has contended that his current bilateral hearing loss and tinnitus had their onset in or are otherwise related to his active service, including noise exposure on the flight line while serving aboard an aircraft carrier. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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, or 4000 Hertz is 40 decibels or greater; 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. at 159. Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Under the combat presumption, where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). This presumption also extends to a combat veteran’s reports of experiencing a permanent disability beginning at the time of injury during combat. Reeves v Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). However, “[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.” Id. at 999 n. 9. As such, the evidence must show that the “disability he incurred in service was a chronic condition that persisted in the years following his active duty.” Id. at 1000. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Turning to the evidence of record, the Veteran’s military personnel records reflected that he served in the Republic of Vietnam (Vietnam) during the Vietnam War. His military occupational specialty (MOS) was electronics mechanic and he has competently and credibly described frequent exposure to aircraft engines on the flight line of an aircraft carrier. As such, his exposure to military noise is presumed and an in-service event or injury is established. Further, the Veteran underwent a VA examination in October 2015 which demonstrated that he has tinnitus and bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. As such, the only question before the Board is whether the presumed exposure to military noise resulted in the current hearing loss and tinnitus. At service entrance, an April 1968 audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 5 LEFT 0 0 0 0 5 Another audiogram conducted in May 1969 revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 20 15 LEFT 15 15 0 25 25 The Veteran had ongoing complaints of right ear chronic otitis media during service and a perforated tympanic membrane in April 1970. Another audiogram conducted in May 1970 revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 10 15 LEFT 35 10 10 15 15 At service separation, the Veteran’s hearing acuity was not measured with an audiogram but instead was measured by whisper test. His hearing was 15 out of 15 bilaterally. Indeed, the Veteran testified before the undersigned in November 2020 that he does not believe he had a separation examination at all. In any case, it is clear he was not provided full audiological testing at separation. During inactive Reserve service, an audiogram was conducted in September 1977 which revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 10 LEFT 15 5 0 20 15 The Veteran indicated on a report of medical history that he had hearing loss. Another audiogram was conducted in February 1979 which demonstrated the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 5 15 LEFT 25 15 5 10 15 The Veteran has described his post-service employment as including logging and forestry work and electrician work in a coal fire plant. During his employment at the plant, regular audiograms were conducted from August 1987 to April 2013. An August 1987 audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 10 20 LEFT 20 10 5 10 20 Hearing loss for VA purposes was first demonstrated in the left ear at an August 1989 audiogram and in the right ear at an October 1992 audiogram. The Veteran underwent a VA examination in October 2015. An audiogram revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 35 60 70 LEFT 15 10 40 65 80 Speech recognition testing using the Maryland CNC Word List yielded speech recognition ability of 96 percent bilaterally. The Veteran stated that his hearing loss and tinnitus began approximately 20 years previously, though he could not describe an exact onset date. He noted that he currently needed hearing aids to hear conversations and that his tinnitus was a 2 out of 5 in severity. The examiner noted that based on the Veteran’s service, his exposure to military noise was highly probable. She discussed the in-service audiograms, noting that they demonstrated hearing acuity within normal limits. She stated that the only hearing examination done at separation was a whisper test and whisper tests are not true tests of hearing as they are not frequency-specific, nor do they have standardized norms. The examiner discussed the two subsequent Reserves audiograms which revealed hearing within normal limits. The examiner determined that the Veteran’s bilateral hearing loss was less likely than not the result of his conceded military noise exposure. In support, she stated that the STRs did not demonstrate hearing loss or significant changes in hearing thresholds greater than normal measurement variability during service. Although there was not a separation examination completed, subsequent examinations revealed hearing within normal limits bilaterally several years later. There were also no complaints or treatment of tinnitus in the STRs. The Veteran reported that his hearing loss and tinnitus began 20 years ago, which would have been over 20 years after leaving service. The Institute of Medicine (IOM) 2006 report stated that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was “unlikely.” Based on the objective evidence available, there was no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of his military noise exposure. The examiner also determined that the Veteran’s tinnitus was less likely than not related to his military service. In support, she stated that he had a clinical diagnosis of hearing loss and that his tinnitus was at least as likely as not a symptom associated with such hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The normal audiograms in service were noted as providing no objective evidence of noise injury. As such, tinnitus was less likely than not the result of his military noise exposure. The Veteran submitted a statement in December 2015 describing his in-service noise exposure. He stated that ringing in his ears was not noticeable until after service, likely because he got used to it during military noise. The Veteran’s wife also submitted a statement noting that they were married in July 1973 and that over the years she needed to raise her voice so he could hear her. She needed to relay conversation from others in their car to him when he was driving, beginning in 1974. She also stated that he has had some degree of hearing loss the entire time that she has known him, beyond 20 years previously. At the November 2020 hearing, the Veteran again described his in-service noise exposure and post-service occupational noise exposure. He stated that he did not experience hearing loss or tinnitus while on active duty. 1. Service connection for bilateral hearing loss is denied. Based on the foregoing, the Board finds that service connection for bilateral hearing loss is not warranted. In this regard, the Board attaches significant probative value to the VA opinion as it well-reasoned, detailed, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. The examiner acknowledged that an audiogram was not conducted at separation, but found that the audiograms in the STRs reflecting hearing within normal limits and the subsequent Reserve service audiograms demonstrating normal hearing acuity did not support a finding that the presumed military noise exposure caused chronic hearing loss. This is supported by the post-service occupational audiograms which demonstrated that the Veteran’s hearing acuity was within normal limits until August 1989 in the left ear and October 1992 in the right ear, 17 and 20 years after separation, respectively, and after years of civilian employment with significant noise exposure. The Board has also considered the direction provided by the Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). In that decision, the Court determined that the Board has an obligation to address contradictory or qualifying aspects of the 2006 IOM report referenced by the VA audiologist when the issue is expressly raised by the veteran or reasonably raised from a review of the record. Although differing aspects of the IOM report was not raised by the veteran, because the examiner in part based her opinion on the IOM report, the Board will discuss it herein. The report itself states that there is no sufficient scientific basis for the existence of delayed onset hearing loss, but also goes on to say that “[t]here is 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.” Here, the VA examiner essentially reiterated the IOM’s finding that there was not a basis for the existence of delayed-onset hearing loss and reconciled the report’s notation that there was not sufficient evidence as to whether hearing loss occurred after the cessation of noise exposure by stating that delayed-onset hearing loss in the absence of damage from noise is unlikely. Given the IOM panel’s determination that such hearing loss would be unlikely, she found the delayed-onset hearing loss to be unlikely in the Veteran’s specific case. The Board finds that the examiner’s conclusions, based on her medical expertise and review of available literature, as well as the particular medical history and circumstances of this Veteran, address the concerns raised in McCray. The Board acknowledges the Veteran’s belief that his hearing loss is the result of his active service. He is competent to describe his experience of decreasing hearing acuity. However, his descriptions have been inconsistent. He has described hearing loss since service but has also testified that he did not experience hearing loss in service. He told the VA examiner that his hearing loss began 20 years prior to the examination (approximately 1995), many years after separation. As such, the Board attaches more probative value to the medical evidence in the claims file depicting hearing within normal limits during active service, during inactive Reserves service, and at the onset of occupational testing. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s currently-diagnosed bilateral hearing loss is the result of his presumed exposure to military noise. 2. Service connection for tinnitus is denied. The Board finds that service connection for tinnitus is not supported by the evidence. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. The Veteran testified that he did not experience tinnitus during active service. He stated that relevant symptoms began after discharge, describing to the VA examiner that they began approximately 20 years previously (1995). The examiner determined that the Veteran’s tinnitus was related to his bilateral hearing loss, which in turn, was less likely than not related to service, noting that tinnitus is known to be associated with hearing loss. The Board finds that the examiner’s opinion, taken in connection with the Veteran’s own reported onset of symptoms, constitutes highly probative evidence against service connection. Accordingly, the preponderance of the evidence is against a finding that the Veteran’s tinnitus is the result of his exposure to military noise. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.