Citation Nr: 21021897 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-02 919 DATE: April 14, 2021 ORDER Entitlement to service connection for tinnitus is denied. FINDING OF FACT Tinnitus did not onset in service or within one year of discharge, and it is not at least as likely as not related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1980 to March 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A July 2018 Board decision denied the Veteran’s claim for service connection for tinnitus. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). Pursuant to a December 2019 Memorandum Decision, the Board decision was vacated and remanded. In August 2020 and December 2020, the Board remanded the issue for further development. 1. Entitlement to service connection for tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 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, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, 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). The Veteran has a current diagnosis of tinnitus. Tinnitus is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The service treatment records do not document any complaints related to ringing in the ears. The Veteran denied ear trouble in the service separation report of medical history in January 1984. The separation examination in January 1984 noted normal ears and drums examination. The Veteran has reported that hearing protection was not available in service and he used cigarette butts to protect his ears. Considering the Veteran’s military occupational specialty was infantry, the Board concedes the Veteran’s report of noise exposure is consistent with the place, type, and circumstances of his service. See 38 U.S.C. § 1154(a). The Veteran reports tinnitus and ringing in his ears since active service. He reports that he was exposed to various levels of noise trauma during active service, and that it was not always possible to wear hearing protection. He reported symptoms of ringing, hissing, and buzzing in both ears. At a July 2014 private audiology visit, the Veteran reported over 30 years of tinnitus and ringing in his ears. He attributed the onset to grenade launchers and heavy caliber guns during service in the Marines. VA treatment records from November 2017 and September 2018 indicate the Veteran denied tinnitus; at an April 2019 mental health visit the Veteran reported noise and tinnitus symptoms. The Veteran was afforded a VA examination in February 2013. However, test results were inconsistent and did not appear to reflect the Veteran’s maximal effort. There was poor intertest reliability. Thus, the examiner concluded the results were invalid and unreliable, and therefore were not reported. The Veteran was afforded a VA examination in November 2014. The Veteran reported constant bilateral tinnitus. He reported that onset was in the Marines. The examiner opined the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The examiner explained that service medical records were negative for complaints of tinnitus. Further, the examiner noted the Veteran did not have acoustic damage from service. The Veteran submitted a private medical opinion by G.U., APRN (advanced practice registered nurse), dated in June 2020. She opined that the Veteran’s bilateral tinnitus is at least as likely as not due to or related to military acoustic trauma during active service. The clinician explained that current medical literature states that many people suffering from tinnitus present without cochlear damage, and thus exhibit normal parameters on audiograms. This is indicative of hidden hearing loss. Therefore, these patients’ hearing loss is not due to typical cochlear damage, as evaluated by audiograms, but by reduced neural output from the cochlea and consequent renormalization of neuronal response magnitude within the brainstem. Audiograms could be normal at 2 weeks or even months or years following acoustic trauma. Tinnitus could then develop, related to the prior acoustic trauma, due to cochlear damage that is undetectable by audiogram. Thus, the clinician concluded that the Veteran’s tinnitus is at least as likely as not due to and/or related to military acoustic trauma during active duty military service. In August 2020, a VA examiner who is an audiologist reviewed the claims file and offered an opinion. The examiner reviewed the claims file. The examiner opined that it is less likely than not that tinnitus is related to military service, military noise exposure, or secondary to any hearing loss condition. The examiner indicated that she had reached this conclusion based on review of the service treatment records which showed normal hearing throughout service including at discharge in January 1984; the Veteran’s denial of hearing loss or an ear, nose or throat problem at that time; a normal hearing audiogram in April 1984; and the fact that he did not seek service connection for tinnitus in December 1984 when he filed service connection claims for other disabilities. The examiner indicated that despite noise exposure in service, the Veteran had no evidence of acoustic damage. The Veteran was afforded another VA examination in October 2020 by a contract audiologist. The examiner opined the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. The examiner explained that hearing testing conducted at enlistment and at discharge showed the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. She indicated that this evidence shows the Veteran did not have a hearing injury while in service. The examiner explained that while many factors are involved, and while she had considered the Veteran’s report of noise exposure and tinnitus onset in service, one critical issue for determining whether tinnitus is related to noise exposure while in service is, did the Veteran have a significant threshold shift beyond normal measurement variability or normal progression. However, evidence in this case convincingly showed the Veteran did not have a significant threshold shift. Therefore, the evidence rebutted the Veteran’s subjective report of hearing loss and tinnitus while in service. With respect to delayed onset, the examiner explained that based on some recent studies with rodents, a few investigators have speculated that a delayed onset of neural, central or cochlear changes may occur as a result of noise exposure. There exist, however, genetic and physiologic differences between humans and rodents, some of which are even observed among varying inbred strains of rodents used in research. Similar challenges in translational research are well documented in other areas of biomedical investigation, including research in the treatment of cancer and chronic diseases. The examiner also addressed the Institute of Medicine (IOM) 2006 report. She indicated that the IOM stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. She noted further that the IOM also stated, There 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. Although the definitive studies to address this issue have not been performed, 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 indicated that this study remains the definitive consensus in this matter and the most comprehensive review regarding effects of noise exposure in our population of veterans. Based on electronic hearing testing conducted at enlistment and at discharge, it was her opinion the Veteran did not have experience an injury to hearing sensitivity while in service and delayed onset tinnitus due to noise exposure is unlikely to occur. For these reasons, his tinnitus is less likely as not caused by or a result of noise exposure while in service. Based on the foregoing evidence, service connection for tinnitus is not warranted. At the outset, entitlement to service connection for tinnitus is not presumed based on the circumstances of this case. Tinnitus was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The evidence of record shows that the Veteran separated from service in 1984 and his initial report of tinnitus was not until his October 2011 application for service connection- decades after service. His service treatment records do not show complaints of, or treatment for, ringing in the ears. At separation he denied ear trouble, but endorsed other unrelated medical issues including recurrent back strain, occasional itching and irritation, and occasional severe cough. There also was no diagnosis of tinnitus within one year of service. The Veteran reports onset of tinnitus in service and continuity of symptoms since. The Veteran’s denial of ear trouble, while reporting other medical issues at discharge is inconsistent with his current assertion that his tinnitus began during service. Horn v. Shinseki, 25 Vet. App. 31, 240 n.7 (2012). While the Veteran is competent to report having symptoms of tinnitus since service, his statements are not credible because they are inconsistent with contemporaneous statements made to medical providers during service. Further, his current assertion that that service connection is warranted based on a ‘delayed-onset theory’ impugns his credibility as to the onset of tinnitus. His argument that his tinnitus is of a delayed-onset stands in direct contradiction to his earlier argument that his tinnitus onset in service and existed continuously thereafter. The Board thus concludes that, while the Veteran has tinnitus, which is a chronic disease under 38 C.F.R. § 3.309 (a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with credible evidence of continuity of symptomatology. The Board further concludes that the Veteran’s current tinnitus disability is not shown to be related to his in-service noise exposure by competent medical evidence. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The evidence in favor of the claim includes the June 2020 opinion from G.U., APRN. The Board finds this nexus opinion is of lesser probative weight than the August 2020 and October 2020 VA audiology opinions. G.U. opined that the Veteran’s noise exposure in active service was directly related to his later development of tinnitus symptoms. She stated that current medical literature showed that tinnitus can present without typical cochlear damage, and thus people present with normal parameters on audiograms. She noted a second study that found that cochlear damage does occur in patients suffering from tinnitus, but that audiograms are not necessarily able to validate that damage until months or even years following the acoustic trauma injury. G.U. did not, however, identify any specific clinical evidence in the Veteran’s claim file showing he experienced acoustic trauma or cochlear damage in service, or that he currently presented with clinical evidence of prior acoustic trauma or cochlear damage. These excerpts from generic medical texts do not apply medical principles regarding causation or etiology to the facts of this individual Veteran's case sufficient to serve as the basis for an award of service connection. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board also observes that the VA audiologists who provided the unfavorable VA opinions have greater expertise in the field of audiology than that of G.U., who is a nurse practitioner. The August 2020 and October 2020 VA opinions and supporting rationales were based on consideration and discussion of the circumstances of this individual Veteran as well as consideration of relevant medical literature. These audiologists conducted audiological examinations of the Veteran and based upon the clinical evidence determined he had not suffered an acoustic injury or trauma in service, and that his current tinnitus is not related to service. The Board affords great probative value to the VA audiologists’ opinions because they considered the pertinent evidence of record, to include the statements of the Veteran and his relevant medical history, and pertinent medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the VA audiologists offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinions are consistent with the contemporaneous medical evidence of record, to include the Veteran’s service treatment records and post-service treatment records and contemplate his specific individual circumstances. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). The Board acknowledges that the October 2020 VA audiologist relied, in part, on the IOM 2006 report in providing a negative opinion. The Court has previously found that this study has seemingly qualifying or contradictory statements. See McCray v. Wilkie, 31 Vet. App. 243 (2019). The Board finds that the VA examiner’s partial reliance on this study does not render her opinion inadequate or diminish its probative value. As the Court held in McCray, the Board is capable of interpreting medical text evidence on its own. See McCray v. Wilkie, 31 Vet. App. at 248, citing Harvey v. Shulkin, 30 Vet. App. 10 (2018). The IOM report acknowledged that definitive studies had not been performed to determine whether permanent noise-induced hearing loss can develop long after the cessation of that noise exposure, but determined that based on the anatomical and physiological data available on the recovery process of noise exposure, it is “unlikely” that delayed hearing loss effects occur is probative. This statement tends to show that the IOM acknowledged and considered the limitations of their study, but it was confident in the available data (anatomical and physiological) to render the conclusion that it is “unlikely” that delayed hearing loss effects occur. This is evidence from their utilization of a strongly worded term ("unlikely") of probability. Notably, the VA examiner indicated that this study remains the definitive consensus in this matter and the most comprehensive review regarding effects of noise exposure in our population of veterans. For the foregoing reasons, the August October 2020 VA nexus opinions are highly persuasive and outweigh the private medical opinion in favor of causal nexus. As the preponderance of the competent and probative evidence is against causal nexus, service connection for tinnitus is not warranted. The evidence of record is also against a finding that the Veteran is entitled to service connection on a secondary basis. To the extent that the November 2014 VA examination report raised a theory of entitlement to service connection on a secondary basis, in regard to a possible connection to the Veteran’s hearing loss, the Veteran is not currently service-connected for hearing loss. There is no competent medical nexus evidence establishing a causal connection between another service-connected disability and tinnitus. Given such, the Veteran is not entitled to secondary service connection. For these reasons, service connection is not warranted. (Continued on the next page)   Entitlement to service connection for tinnitus is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.