Citation Nr: 21021955 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-04 734 DATE: April 14, 2021 ORDER 1. Entitlement to service connection for bilateral hearing loss disability is denied. 2. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Bilateral hearing loss disability did not have its onset in service, was not manifested to a compensable degree within one year of service discharge; and is not otherwise related to service. 2. Tinnitus did not have its onset during active service, was not manifest to a compensable degree within one year of service discharge; and is not otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1970 to January 1972. The Veteran and his wife testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is within the record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, which are organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the purposes of applying 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. Entitlement to service connection for bilateral hearing loss disability The Veteran believes that his bilateral hearing loss disability had its onset during service or is otherwise related to in-service noise exposure. During his Board hearing, he stated that he had to listen to the radio and Morse code for up to eight hours a day. Additionally, during field training, he flew in helicopters and airplanes with no ear protection. He admitted that he did not seek medical care for his hearing loss during service. He also stated that he had noise exposure post-service when he worked in construction, on a railroad, and on a farm. However, he testified that he wore ear protection in his post-service occupations. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss disability. The reasons follow. As to evidence of a current disability, the October 2015 VA examination shows that the Veteran was diagnosed with bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Thus, the first element of a service-connection claim is met. As to evidence of a disease or injury in service, the service treatment records do not show a disease or injury to the Veteran’s ears during service. For example, the Veteran was afforded auditory testing prior to his entrance in service in May 1970, as well as a separation examination in December 1971. The October 2015 VA audiologist wrote that the Veteran’s hearing at entrance and separation were within normal range, with the separation examination showing that the Veteran’s hearing was better in some threshold ranges. Additionally, the Veteran was assigned a “1” rating assessing hearing under the PULHES profile system in both May 1970 and December 1971, indicating no impairment to the Veteran’s hearing at entrance and separation from the military. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the “PULHES” profile reflects the overall physical and psychiatric condition of the veteran’s capacity and stamina (“P”); upper extremities (“U”); lower extremities (“L”); hearing (“H”); eyes (“E”) and psychiatric condition (“S”); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). The Veteran has reported acoustic trauma in service while being in the field flying in helicopters and airplanes without ear protection; however, the service personnel records do not support the Veteran served on an aircraft carrier. His DD Form 214 and service personnel records show he was a radio operator. Thus, the Board finds the preponderance of the evidence is against in-service acoustic trauma on an aircraft carrier. This finding is supported by the October 2015 audiologist’s notation that the Veteran military occupational specialty (radio operator) had a moderate probability of exposure to a hazardous level of noise. Regardless, the Board concedes the Veteran had some in-service noise exposure. Thus, the facts establish that the second element of a service-connection claim is met to this extent only. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus between the current bilateral hearing loss disability and service. For example, the first documented complaint of hearing loss is within an April 2015 VA medical treatment record, where the Veteran asked for a consultation to audiology for possible hearing loss. Additionally, a July 2015 VA medical treatment record notes that the Veteran said he had no problem with his hearing, only that other people have noticed he may have a hearing problem. Thus, the Veteran first reported hearing loss in 2015, which is more than 40 years after service and does not lend to a finding that the bilateral hearing loss disability had its onset in service. Additionally, without evidence of bilateral sensorineural hearing loss within one year of service discharge, service connection is not warranted based on a presumptive basis for a chronic disease. The Veteran was afforded a VA examination in October 2015. At the conclusion of the examination, the examiner concluded that the Veteran’s bilateral hearing loss disability was less likely than not caused by or the result of his military service because the Veteran’s service treatment records did not support the onset of hearing loss in service. The examiner noted that the Veteran’s service entrance and separation examinations indicated normal hearing in both ears. The examiner considered the Veteran’s MOS as a radio operator, which he noted had a moderate probability of noise exposure, as well as his post-service employment as a farmer operating equipment. Additionally, the Veteran stated his hearing loss has been gradual over the years and he reported a history of ear infections as a child and adult. The Veteran also reported that his ear infections got so bad that his outer ear swelled. The examiner then concluded that based on his service treatment records that indicated no loss of hearing during active duty, his familial hearing loss, his history of middle ear problems, the probability of occupational noise, and the Veteran’s statement that the loss had been gradual over the years, the Veteran’s bilateral hearing loss disability was less likely than not caused by noise exposure in service. The Board finds the October 2015 VA examination has the most probative value. The opinion provides competent and probative evidence that weighs against the Veteran’s claim because the examiner reviewed the claims file, interviewed the Veteran, performed an examination, and provided a medical opinion supported by a well-reasoned rationale, which was based on the particular facts of the Veteran’s circumstances. Additionally, there is no competent and probative evidence to weigh against the medical opinion provided. During the Board hearing, the Veteran’s wife testified that she met the Veteran in July 1973 and that he had hearing issues involving loud music. However, even conceding that the Veteran had hearing issues in July 1973, that is more than one year following service discharge and does not establish hearing loss in service. While the Veteran has alleged that his bilateral hearing loss disability is related to in-service noise exposure, he is not competent to directly link the current bilateral hearing loss disability to in-service noise exposure, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Absent competent and probative evidence of a nexus between the Veteran’s bilateral hearing loss disability and service, the Board finds that the bilateral hearing loss disability was not incurred in service and is not otherwise related to active service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran believes that his tinnitus had its onset during service. At his Board hearing, he testified that the ringing in his ears was no different than “kind of the dull hearing loss” and it would gradually go away. He stated that after he was in the field, he would notice the ringing in the ears more. However, he admitted he did not report the tinnitus while he was in service. Furthermore, he said his tinnitus got worse and more continual, but it started along with the hearing loss when he was in the service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for tinnitus. The reasons follow. As to evidence of a current disability, the Veteran has been diagnosed with tinnitus. Thus, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the Board concedes the Veteran had some in-service noise exposure. Thus, the facts establish that the second element of a service-connection claim is met to this extent only. However, as to evidence of a nexus between the Veteran’s tinnitus and service, the Board finds the preponderance of the evidence is against a nexus. The Veteran was afforded an in-person VA audiological examination in October 2015. The examiner stated that the Veteran has a diagnosis of clinical hearing loss and his tinnitus is 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. Additionally, the examiner stated that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The examiner documented that the Veteran reported the onset of his tinnitus was five years prior and when asked if he recalled having tinnitus in the service, he stated he did not recall having tinnitus in the service. The examiner did not find a complaint of tinnitus in his service treatment records and those records did not show a shift in his hearing during active duty that would be consistent with the effects of noise exposure. Furthermore, the examiner stated that the evidence indicated the Veteran’s hearing loss occurred after leaving the service and his tinnitus was most likely associated with that hearing loss. This opinion is evidence against a nexus between the Veteran’s tinnitus and service. The Board affords great probative weight to the opinion of the October 2015 VA audiological examiner, who found that the Veteran’s tinnitus was less likely than not related to service. The examiner reviewed the Veteran’s file, performed a thorough examination, obtained a history from the Veteran regarding his tinnitus symptoms, and provided a detailed opinion supported by a well-reasoned rationale, which was based on the particular facts of the Veteran’s circumstances. Additionally, there is no competent and probative evidence to weigh against the medical opinion provided. During the Board hearing, the Veteran’s wife testified that she met the Veteran in July 1973 and that summer he discussed his military duties. She said that his ears were ringing at that time. Additionally, she said that if there were loud noises at different times, the ringing would be bothersome to him. The Veteran had testified that he noticed ringing in his ears during service. However, the Veteran’s and his wife’s statements are outweighed by the findings documented in the October 2015 VA examination report, which documented that the Veteran reported the onset of his tinnitus five years prior, which would have been in approximately 2010. Additionally, the examiner specifically asked the Veteran if he recalled having tinnitus in service and that he responded, “[N]o, I do not.” Included as part of the October 2015 examination report are the examiner’s handwritten notes, which included the “No” response to whether he noticed tinnitus in service and the fact that he reported it began five years prior. This means that what the examiner documented in the October 2015 VA examination report is accurate, as he made these notations contemporaneously with interviewing the Veteran in connection with the examination, which statements tend to be highly reliable. Thus, the Board has no reason to question the accuracy of what the audiologist documented, which was that the Veteran reported the onset of tinnitus five years prior and denied tinnitus during service. Therefore, the Board finds that the Veteran’s testimony that his tinnitus had its onset during service is not credible, and accords such statement no probative value. The Board finds as fact that tinnitus did not have its onset in service based on the Veteran’s October 2015 denial to the VA audiologist. Regarding presumptive service connection relating to a chronic disease, there is no competent and credible evidence of record that the Veteran’s tinnitus manifested to a compensable degree within one year of the Veteran’s discharge from service. In this case, the Veteran specifically reported in July 2015 that he had “occasional” bilateral tinnitus. Then at his October 2015 VA examination, the Veteran reported that the onset of his tinnitus was five years ago. As the first documented report of his tinnitus more than 43 years after discharge from active service, service connection is not warranted based on a presumptive basis for a chronic disease. While the Veteran has alleged that tinnitus is related to service, he is not competent to directly link the current tinnitus to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. Absent competent, credible, and probative evidence of a nexus between the Veteran’s tinnitus and service, the Board finds that the Veteran’s tinnitus was not incurred in service and is not otherwise related to active service. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.