Citation Nr: 21021884 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-39 944 DATE: April 14, 2021 ORDER Entitlement to service connection for left ear 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’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 left ear 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 May 1988 to October 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These claims were remanded for additional development in October 2018 and 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 left ear hearing loss is denied. 2. Entitlement to service connection for tinnitus is denied. The Veteran alleged that his left ear hearing loss and tinnitus are the result of his in-service exposure to acoustic trauma. 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, a November 2019 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 August 1992 separation examination showed that his hearing was within normal limits by audiogram. In an associated medical history report, the Veteran denied hearing loss and ear trouble. In VA treatment records dated in October 2010, the Veteran specifically denied tinnitus. In a January 2015 statement, the Veteran stated that he has been experiencing unusual tones in his ears for several years. He stated that when he was on the rifle range in basic training, he would have a loud ringing that would resonate in his head for upwards of an hour. He stated that the issue has gotten worse over the years and in 2008 became a regular occurrence. The Veteran underwent a VA audiological examination in November 2019. Puretone testing showed mild to sensorineural hearing loss in the left ear, and normal hearing on the right. The examiner reviewed the claims file and noted that hearing tests dated January 1988, May 1988, and August 1992 show hearing within normal limits for both ears. The examiner found the Veteran’s left ear hearing loss is less likely than not caused by or a result of an event in military service as there is no evidence of hearing loss during active duty service. The Veteran reported the onset of his tinnitus in 2009. He stated the tinnitus is constant. The examiner opined the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure as the Veteran reported the onset in 2009 and left active duty service in 1992. The examiner referred to a number of medical treatises including by the Institute of Medicine. Subsequent to the October 2020 Board remand, additional VA opinions were obtained in January 2021. The examiner reviewed the claims file and noted that at November 2019 audiology examination the Veteran reported the onset of tinnitus in 2009, approximately seventeen years removed from military service and any noise exposure sustained therein. The examiner found this etiologically relevant because in 2006 the Institute of Medicine which found that the most profound auditory effects of noise exposure occur immediately following exposure. Tinnitus is known to be associated with many conditions outside of noise exposure, and such a delayed onset of tinnitus relative to dates of service best suggests an etiology outside of hearing loss. Therefore, the examiner opined that it is less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. Regarding any contradictory aspects or conclusions in the aforementioned 2006 Institute of Medicine study, no such contradictions relevant to this case are present. The examiner also noted that the most current 2019 audiology examination findings met the criteria for left-sided hearing loss, namely a pure tone threshold of 40 dB at 500 Hz. Puretone thresholds at all other relevant frequencies (1000 Hz to 6000 Hz) are within normal limits in the left ear, and a PBMAX value of 100 percent is obtained for the left ear. Noise-induced hearing loss most commonly manifests in a sloping configuration, with worsening thresholds with increased frequency. A notched hearing loss at 500 Hz is not a pattern consistent with noise damage. Therefore, the examiner opinioned it is less likely than not that the Veteran’s left-sided hearing loss was caused by or a result of military noise exposure. In this case, the Board finds that service connection for left ear hearing loss and tinnitus is not warranted. The November 2019 and January 2021 VA examiners 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 examiners reasoned that there were no complaints of hearing loss or tinnitus in service treatment records or at separation from service the Veteran’s hearing loss did not present in the same fashion as noise-induced hearing loss. These opinions 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. In addition, there is no evidence to suggest that hearing loss or tinnitus became manifest to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.309(a). Further, to the extent the Veteran has claimed continuity of symptoms relative to these disabilities since service, such assertions are inconsistent with the report of his service separation examination, which shows no mention of complaints or hearing loss or ringing in the ears. Additionally, the Veteran specifically denied tinnitus in October 2010 VA progress notes. Further, the Veteran was not provided diagnoses of hearing loss or tinnitus until 2019, many years after his separation from service. The Board has considered the lay evidence of record, including the Veteran’s statements suggesting a relationship between his tinnitus and service. While the Veteran is competent to report what he observed in service, he is not shown to have the specialized training necessary to offer a competent opinion on such a complex matter as the etiology of hearing loss or tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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, service connection for the Veteran’s claimed tinnitus and left ear 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. Robert N. Scarduzio 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.