Citation Nr: 21021861 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-38 536 DATE: April 14, 2021 ORDER The application to reopen the claim for service connection for bilateral hearing loss is granted. The application to reopen the claim for service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. In a March 2011 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for bilateral hearing loss and tinnitus. 2. The notice of the March 2011 decision was properly promulgated and no additional evidence was received nor a notice of disagreement filed within one year of promulgation. 3. The AOJ denying reopening of the claim for service connection for bilateral hearing loss in a June 2012 rating decision. 4. The notice of the June 2012 decision was properly promulgated and no additional evidence was received nor a notice of disagreement filed within one year of promulgation. 5. Evidence added to the record since the June 2012 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises the possibility of substantiating the Veteran’s claim of entitlement to service connection for bilateral hearing loss. 6. Evidence added to the record since the March 2011 rating decision, is not cumulative or redundant of the evidence of record at the time of the decision and raises the possibility of substantiating the Veteran’s claim of entitlement to service connection for tinnitus. 7. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss began during active service or is otherwise related to an in-service injury or disease. 8. The preponderance of the evidence is against finding that the Veteran’s tinnitus began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The March 2011 rating decision that denied service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105(c) (2002) [2018]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [2020]. 2. The June 2012 rating decision that denied reopening of service connection for bilateral hearing loss is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. New and material evidence has been received to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from December 1968 to November 1971. This case comes before the Board of Veteran’s Appeals (Board) on an appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran attempted to file a notice of disagreement in March 2012. The RO determined that since it was after the appeal period for the March 2011 rating decision, it was considered a new claim. A rating decision was issued in June 2012, denying the claim to reopen entitlement to service connection for bilateral hearing loss because no new and material evidence had been received. The Veteran testified before the undersigned at a Board videoconference hearing in December 2020, and a copy of the hearing transcript has been obtained and associated with the record. Service Connection 1. New and material evidence having been received, the application to reopen the claim for service connection for bilateral hearing loss 2. New and material evidence having been received, the application to reopen the claim for service connection for tinnitus In a March 2011 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus. The Veteran was notified of the March 2011 rating decision and his procedural and appellate rights in a March 11, 2011, letter sent to his address of record and to his representative. He did not file a notice of disagreement within the one year of notice of the March 2011 rating decision. No additional evidence was received within one year of notice of the March 2011 rating decision. For this reason, the March 2011 rating decision denial of service connection for bilateral hearing loss and tinnitus became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran filed a document on March 28, 2012, more than one year after notice of the March 2011 rating decision, in which he attempted to file a notice of disagreement with the March 2011 rating decision. The RO determined that the notice of disagreement was untimely and would be taken as a new claim for benefits. The Veteran was notified of this in an April 25, 2012, letter, again with notice of his procedural and appellate rights. The Veteran did not disagree with the determination. The RO denied the Veteran’s March 2012 claim in a June 2012 rating decision, but only as to bilateral hearing loss. The Veteran was notified of the denial and his procedural and appellate rights in a June 7, 2012, letter sent to his address of record and to his representative. He did not file a notice of disagreement within the one year of notice of the June 2012 rating decision. No additional evidence was received within one year of notice of the June 2012 rating decision. For this reason, the June 2012 rating decision denial of service connection for bilateral hearing loss became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. Evidence received since the March 2011 and June 2012 rating decisions includes two audiological examinations with opinions referable to the Veteran’s bilateral hearing loss and tinnitus. Such evidence includes clinical findings, as well as nexus opinions regarding the etiology of the Veteran’s hearing loss and tinnitus. Thus, as service connection was previously denied on the basis that there was no evidence that the claimed conditions began or was caused by his service, and the newly received evidence addresses an unestablished factor of service connection, the Board finds that the evidence received since March 2011 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus. Accordingly, the Board concludes that the criteria for reopening service connection are met. 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 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, 1167 (Fed. Cir. 2004). Sensorineural hearing loss and tinnitus will be presumed related to service, absent an intercurrent cause, if a) they were shown as chronic in service; or, b) if they manifested to a compensable degree within a presumptive period following separation from service; or, c) if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss. He claims his military occupational specialty (MOS) as an engineer equipment operator and operating heavy equipment to include bulldozers, cranes, and graters caused him to have hearing loss. The Veteran’s disability is also one for which presumptions of service connection are available. For the reasons that follow, the Board finds that the presumptions are not met, and the Veteran’s bilateral hearing loss is unrelated to service. The Board concludes that service connection is not warranted for bilateral hearing loss. I. Presumptive Service Connection The Veteran seeks entitlement to service connection for bilateral hearing loss. Sensorineural hearing loss is among the “chronic diseases” for which presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. a. Hearing Loss Shown as “Chronic” In Service The Board finds first that the Veteran’s bilateral hearing loss was not chronic in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observations to establish chronicity at the time. See 38 C.F.R. § 3.303(b). Upon entering the service, the Veteran underwent an entrance examination where his hearing was tested. It was reported his hearing was within normal limits. His service treatment records (STRs) are silent for complaints of hearing problems and only had one complaint of an ear infection in his left ear. During his exit examination, the Veteran was given a whisper test, and while whisper test does not meet current VA standards, the examiner determined his hearing was still within normal limits. For a showing of chronic disease in service, a reliable diagnosis must be made in service. Walker, 708 F.3d at 1335. As the record shows no diagnosis of hearing loss, the Board finds the preponderance of the evidence is against chronicity in service. b. Manifestations to a Compensable Degree after Separation from Service The Board also finds that the Veteran’s bilateral hearing loss was not manifest to a compensable degree after separation from service. The medical records state he was diagnosed with bilateral hearing loss in November 2010, almost forty years after service. The Veteran stated his hearing loss began in service and during his exit examination he only had a whisper test, so he had no pure tone threshold measurements to show his hearing loss. There are no audiometric evaluations for the one-year period following separation from service. Therefore, the evidence is not sufficient to determine whether the Veteran had a compensable bilateral hearing loss disability within the year following his separation from service. The Board concludes that the criteria for presumptive service connection are not warranted on this basis. 38 C.F.R. § 3.307(a). c. Continuity of Symptomatology Finally, the evidence of record indicates the Veteran did not have continuity of symptomatology for bilateral hearing loss. As noted above, the Veteran reported having trouble hearing since service; however, competent evidence demonstrating a relationship between any present disability and the continuity of symptomatology is required, whether lay or medical evidence. Savage v. Gober, 10 Vet. App. 488, 494 (1997), overruled on other grounds by Walker, 708 F.3d at 1355. The Veteran was not diagnosed with bilateral hearing loss prior to separation, nor during the year following service. He suggests that his MOS operating large machinery and subsequent noise exposure are what led to his diagnosis of bilateral hearing loss. The Veteran’s lay reports of difficulty are not sufficient to relate his current disability to service via continuity of symptomatology. The Veteran is competent to report that his hearing changed in service, but not to diagnose himself with a hearing loss disorder. As noted, he was not diagnosed at separation. As will be discussed further below, a competent medical opinion found that his current disability is not related to his service even considering his complaints of persistent symptoms. The Board finds that the Veteran’s bilateral hearing loss was not noted in service with attributable continuity of symptomatology. The Board concludes service connection is not warranted on this basis. 38 C.F.R. § 3.303(b). The Board turns to consider direct service connection. II. Direct Service Connection As noted above the current disability, bilateral hearing loss has been established. Also, the Veteran testified that his MOS required him to operate bulldozers and that he had extensive noise exposure during service; therefore, establishing an in-service noise exposure. The remaining issue is whether the current disability maybe related to those in-service injuries. Shedden, 381 F.3d at 1166-67. The Veteran testified to extensive noise exposure during service while operating heavy machinery. He indicated he did not always have hearing protection in service but once he realized his hearing was getting worse, he asked for hearing protection and began wearing it. The Veteran also testified to having noise exposure with his post-service jobs and recreational firearm use when hunting, but that he wore hearing protection regularly. The Veteran underwent a VA audiological examination in November 2010. The examiner determined the Veteran had moderate mid-to-high frequency sensorineural hearing loss in the right ear and a severe mid-to-high frequency sensorineural hearing loss in the left ear. He denied ear pain, ear drainage, ear surgery, and problems with balance. The examiner concluded it was more likely than not that the Veteran is not service connected for hearing loss due to military noise exposure. He determined since the Veteran had no complaints of any hearing loss during service, his service connection filing in 1976 had no complaints of hearing loss, and his ears were checked as normal at the separation examination, that it was more likely than not that his hearing loss was related to his civilian occupational noise exposure. More specifically, the Veteran had worked in noisy environments for over thirty years, including his current employer of twenty-four years that required hearing tests due to high noise levels, and a history of recreational firearm use. He opined that it is more likely than not his hearing loss is related to his civilian occupational noise exposure and firearm use, and not to his service in the military. The Veteran had another VA auditory consult in June 2016. The examiner confirmed the diagnosis of bilateral sensorineural hearing loss. He also discussed the Veteran’s noise exposure during and after service, conceding there was noise exposure in service and extensive exposure after service in civilian work and recreational firearm use. The examiner noted that the Veteran’s civilian job made hearing protection available and enforced its usage in the late 1980s. He noted the Veteran did not complain of hearing loss during service, and that the first documented hearing loss complaint was in his 2010 claim for service connection. The examiner also reviewed employer provided audiograms from 1988-2010. While the employer provided audiograms do not meet VA standards for audiological testing because they did not perform Maryland CNC speech discrimination tests, the examiner did say the audiograms show high frequency hearing loss in both ears. In evaluating the Veteran’s hearing loss, the examiner referenced the Institute of Medicine’s study “Noise and Military Service: Implications for Hearing Loss and Tinnitus.” Particularly, the discussion on noise-induced hearing loss developing much later, long after the noise exposure occurred, finding that based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. The examiner then concluded that even though the Veteran has hearing loss now and was exposed to noise in service, that it does not necessarily mean his current hearing loss was caused by noise exposure, since there is no scientific evidence to support the delayed onset of hearing loss. Further opining that without an audiogram at the time of his separation from service, it is not possible to opine as to whether his hearing loss was likely related to service noise exposure or not without resorting to speculation. The Veteran underwent a private audiological evaluation in November 2020. The Veteran described his noise exposure in service and his usage of hearing protection, saying he wore it most of the time but not until he was aware it was available. The examiner documented the Veteran’s additional occupational noise exposure from working as an iron worker and at Foremost Farms, where he used hearing protection. The examiner evaluated the audiograms the Veteran’s prior employer provided from 1988-2010. She determined that the Veteran’s hearing remained stable between the years 2003-2009, but there was a clinically significant shift from 1988-2010. She explained, however, that it was not atypical given the thirty-two-year time frame between tests. She opined that the Veteran’s bilateral hearing loss was at least as likely as not caused by or related to military noise exposure/acoustic trauma. While the Board is required to consider all pertinent medical and lay evidence in evaluating a claim, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Here, while the Veteran is competent to relay symptoms observable to a layperson, such as decreased hearing acuity, and describe noise exposure from service, the Board need not find a Veteran statements competent to render opinions regarding the etiology of a medical condition (such as sensorineural hearing loss) that requires specialized medical knowledge (and equipment) to diagnose. King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Veteran has not shown that he possesses the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation of the Veteran’s bilateral hearing loss. Accordingly, this lay evidence does not constitute competent evidence and lacks probative value. When considering more than one medical opinion, the Board may weigh each opinion differently, and favor one opinion over another. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). The probative weight of medical opinion evidence is based on, among other things, the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board finds both the VA and the private audiology nexus opinions to be offered by competent witnesses, credible, and entitled to probative weight as they both provide a rationale and bases for the opinions offered; however, the Board finds the VA examinations and opinions to be more probative than the private examination. The September 2020 private examination says that the Veteran’s hearing was stable from 2003-2010, with no notable standard threshold shift between years, but when comparing the baseline from 1988 to 2010, she says that there was a clinically significant shift in hearing which she attributes to the thirty-two year time frame. She then later says his hearing remained stable from 1988-2010, and again from 2010-2020. These periods of stability and significant threshold shift overlap. The VA medical opinions do not suffer from similar inconsistencies. These inconsistencies provide for the VA examinations to be considered more probative. Accordingly, as the preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). Therefore, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for tinnitus The Veteran also seeks service connection for tinnitus due to his hazardous noise exposure in service. He claims he first noticed the ringing in his ears when he was stationed at Camp Lejeune working heavy machinery. He testified to using hearing protection while working at Foremost Farms and with his recreational firearm use but did not always use it when working heavy machinery during his military service. The Veteran’s disability is also one for which presumptions of service connection are available. For the reasons that follow, the Board finds that the presumptions are not met, and the Veteran’s tinnitus is unrelated to service. The Board concludes that service connection is not warranted for tinnitus. I. Presumptive Service Connection The Veteran claims entitlement to service connection for tinnitus. Tinnitus is among the “chronic diseases” for which presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. a. Tinnitus Shown as “Chronic” In Service The Board finds first that the Veteran’s tinnitus was not chronic in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observations to establish chronicity at the time. See 38 C.F.R. § 3.303(b). Upon entering the service, the Veteran underwent an entrance examination where his hearing was tested. It was reported his hearing was within normal limits and there was no mention of tinnitus. His STRs are silent for complaints of tinnitus. During his exit examination, the Veteran underwent a whisper test and did not report any hearing problems or tinnitus. For a showing of chronic disease in service, a reliable diagnosis must be made in service. Walker, 708 F.3d at 1335. As the record shows no complaints or mentions of tinnitus, the Board finds the preponderance of the evidence is against chronicity in service. b. Manifestations to a Compensable Degree after Separation from Service The Board also finds that the Veteran’s tinnitus was not manifest to a compensable degree after separation from service. In his November 2010 audiology examination, the Veteran indicated his noise exposure during service caused his tinnitus. The Veteran testified that his tinnitus began in service; however, there are no records that the Veteran complained of or was diagnosed with tinnitus after service until his November 2010 VA examination, almost forty years after separation from service. Therefore, the medical records do not suggest that his tinnitus was diagnosed within the year following his separation from service. The Board concludes that the criteria for presumptive service connection are not warranted on this basis. c. Continuity of Symptomatology Finally, the evidence of record indicates the Veteran did not have continuity of symptomatology for tinnitus. As noted above, the Veteran reported having ringing in his ears since service, however, competent evidence demonstrating between any present disability and the continuity of symptomatology is required, whether lay or medical evidence. Savage v. Gober, 10 Vet. App. 488, 494 (1997), overruled on other grounds by Walker, 708 F.3d at 1355. The Veteran was not diagnosed with tinnitus prior to separation nor during the year following service. He suggests that his MOS as an engineer equipment operator and subsequent noise exposure are what led to his diagnosis of tinnitus, but while he is competent to relay his symptoms, “[c]ontinuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not…shown to be chronic or where the diagnosis may be legitimately questioned.” 38 C.F.R. § 3.303(b). The Board finds that the Veteran’s tinnitus was not noted in service with attributable continuity of symptomatology, and therefore, the Board concludes service connection is not warranted on this basis. 38 C.F.R. § 3.303(b). The Board turns to consider direct service connection. d. Direct Service Connection As noted, the current disability, tinnitus, and in-service noise exposure, have been established. The remaining issue is whether the current disability maybe related to those in-service injuries. Shedden, 381 F.3d at 1166-67. As noted above, the Veteran had a VA audiology examination in November 2010. At this examination, the Veteran was diagnosed with bilateral tinnitus. He claimed it began during service, almost 40 years prior. The examiner determined it was more likely than not that the Veteran is not service connected for tinnitus due to military noise exposure. He continued by saying the Veteran had no complaints of ear problems other than one earache during service in 1970, and when he was separating from the service, he did not complain of tinnitus or ear noises. The examiner also referenced the Veteran’s 1976 claim for service connection for a lung disorder, indicating that the Veteran did not mention any ear issues at that time either. He opined that it was more likely than not that the Veteran’s tinnitus was related to his civilian occupational noise exposure and firearm use, and not due to his military service. In his June 2016 VA examination, the examiner confirmed the diagnosis of bilateral tinnitus. He noted the Veteran had no complaints of tinnitus during service and the first documented complaint of tinnitus was in the Veteran’s 2010 claim for service connection. As stated above, the examiner considered the Veteran’s noise exposure after service in his jobs as an ironworker and with Foremost Farms, and his recreational exposure with his use of firearms. He also determined that without a separation examination audiogram, it cannot be determined if there was a hearing threshold shift during service to show whether there was any evidence of noise injury to the Veteran’s hearing or not. He said without evidence of noise injury to the Veteran’s hearing, it is not possible to determine if the tinnitus is likely related to military noise exposure without resorting to speculation. However, he also noted that there are many possible etiologies for tinnitus, and noise injury is just one of them. Finally, in the Veteran’s September 2020 private audiology consult, the audiologist opined that it was at least as likely as not that the Veteran’s tinnitus was caused by or a result of an event in military service. The doctor discussed the Veteran’s noise exposure during and after service, focusing on the use of hearing protection. She also indicated that there was no evidence to refute the Veteran’s claim of hearing loss because of the lack of a separation examination with pure tone threshold measurements, and that therefore, in the absence of proof, opinions should and will favor the Veteran. She continued saying that the relationship between noise exposure, auditory damage and tinnitus is documented in the research and the objective evidence of stable hearing thresholds from 1988 to 2010 while working at Foremost Farms supports a possible nexus of auditory damage prior to 1988. Tinnitus is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). However, while the Veteran contends the onset of his tinnitus was in service or soon thereafter, the first documented mention of tinnitus is not until 2010, almost forty years after service. Furthermore, during those forty-years following service, the Veteran had extensive noise exposure. The VA examination report makes clear that there are multiple potential etiologies for tinnitus and the documented preservation of the Veteran’s hearing acuity during service and the lack of any care in the intervening decades stymies the ability of even a medical professional to render a certain opinion here. The Board finds the Veteran’s intervening noise exposure and silence of tinnitus complaints for forty years, impacts adversely the probative value of the Veteran’s statements. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As discussed above, the private examination opinion had some inconsistencies, making the VA examinations more probative. Thus, the Board finds the preponderance of the evidence is against the award for service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. (Continued on the next page)   § 5107(b). Therefore, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.