Citation Nr: 21022449
Decision Date: 04/15/21	Archive Date: 04/15/21

DOCKET NO. 14-04 096
DATE: April 15, 2021

ORDER

Service connection for bilateral hearing loss is denied. 

Service connection for tinnitus is granted.

FINDINGS OF FACT

1. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss manifested during active service or is otherwise related to an in-service injury or disease.

2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s tinnitus is at least as likely as not related to in-service acoustic trauma.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss are not met.  38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

2. The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had Army National Guard service from December 1970 to June 1976, including a period of active duty for training (ACDUTRA) from December 1970 until April 1971. He had no foreign or overseas service.

This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d).

This matter comes before the Board on appeal from a March 2013 decision by the Des Moines, Iowa, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for bilateral hearing loss and tinnitus. 

In October 2016, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. In March 2021, the Veteran was offered the opportunity to have a second Board hearing, which he declined. Thus, the Board adjudicates this case on the evidence of record.

In a December 2017 decision, the Board denied the Veteran’s claim for service connection for bilateral hearing loss and tinnitus. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (JMR) in which they stipulated the Board did not obtain outstanding VA medical records and relied on an inadequate February 2012 VA examination. The Court entered an order in September 2018 vacating the Board’s decision in full and remanding the case to the Board for readjudication.

In May 2019, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to: (1) obtain outstanding VA medical records from VA facilities in Iowa, City, and Denver Colorado, to include those in 2012 relating to the Veteran’s receipt of hearing aids; and (2) obtain an addendum opinion addressing the etiology of the Veteran’s bilateral hearing loss and tinnitus. The case now returns to the Board.

Evidentiary Standards

In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The law requires the Board to address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. 

Service Connection

VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis.

Certain chronic diseases (including sensorineural hearing loss, as an organic disease of the nervous system) may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time post-service (1 year for organic disease of the nervous system). 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309(a). 

1. Service connection for bilateral hearing loss

First element: A current disability

As to the first element, a current disability, for VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

In February 2012, the Veteran had a VA audiology examination. His Puretone thresholds, in decibels, were:

	HERTZ*

	A	B	C	D	E	F	G	

	500*	1000*	2000*	3000*	4000*	6000*	8000*	Average (B – E)

RIGHT	10	10	10	25	45	35	25	22

LEFT	10	19	15	25	50	45	35	25

The Veteran’s speech discrimination scores (Maryland CNC word list) were:

Right Ear	100 %

Left Ear	100 %

He received a second examination in January 2021 by a VA-contracted audiologist. His Puretone thresholds, in decibels, were:

	HERTZ*

	A	B	C	D	E	F	G	

	500*	1000*	2000*	3000*	4000*	6000*	8000*	Average (B – E)

RIGHT	20	25	20	35	60	55	55	35

LEFT	25	25	30	40	55	50	55	37.5

The Veteran’s speech discrimination scores (Maryland CNC word list) were:

Right Ear	96 %

Left Ear	96 %

In both 2012 and 2021, the Veteran’s Puretone threshold at 4000 Hertz was above 40 decibels for each ear. Therefore, the Veteran has a current disability of bilateral hearing loss for VA compensation purposes. The first element is satisfied. 

Second element: An in-service event, injury, or illness, or aggravation thereof

As to the second element of service connection, an in-service event, injury, or illness that occurred while on ACDUTRA, the Board finds the Veteran’s assertion that he was exposed to a grenade explosion in training competent and has no reason to question the Veteran’s credibility regarding the occurrence. The Veteran’s statements in his correspondence and hearing testimony have been consistent, lending to their credibility. 

Therefore, the evidence of record is sufficient to establish an in-service event. The second element is satisfied. 

 

Third element: A causal link

As to the third element of service connection, a causal link between the Veteran’s bilateral hearing loss and in-service events, the Board concludes the evidence of record weighs against finding a causal link. 

In support of his claim for service connection, the Veteran relies on the auditory threshold shifts between his entrance examination and exit examination. His service treatment records indicate that, in April 1970, he had a pre-induction audiology examination. The clinician, using the International Organization for Standardization (ISO) standard, recorded his Puretone thresholds as:

	HERTZ*

	A	B	C	D	E	F	G	

	500*	1000*	2000*	3000*	4000*	6000*	8000*	Average (B – E)

RIGHT	0	0	0	X	15	0	0	NA

LEFT	0	0	0	X	15	0	0	NA

“X” indicates the Veteran’s hearing was not tested at the indicated Hertz level. In his April 1971 separation examination, a clinician recorded his Puretone thresholds as:

	HERTZ*

	A	B	C	D	E	F	G	

	500*	1000*	2000*	3000*	4000*	6000*	8000*	Average (B – E)

RIGHT	10	5	5	X	10	X	X	NA

LEFT	10	10	10	X	15	X	X	NA

Notably, the Veteran was given a hearing Physical Profile of “1” indicating normal hearing. Additionally, in the accompanying report of medical history, the Veteran denied having or having ever had hearing loss, despite reporting a number of other physical complaints. 

Since filing the present claim for service connection for bilateral hearing loss, the Veteran has consistently asserted that he has had problems with hearing loss ever since service. The Board notes that while the Veteran is competent to observe he has difficulty hearing, a hearing loss disability is established by diagnostic studies. See 38 C.F.R. § 3.385. Hearing loss was not noted in service, and audiometry on separation in April 1971 found normal hearing acuity. Therefore, it is not shown that a hearing loss disability was manifested in service, and service connection for such disability on the basis that it manifested in service and persisted is not warranted. As sensorineural hearing loss is not shown to have manifested within a year of separation, service connection for such disability on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112) likewise is not warranted.

A medical opinion was obtained from a VA-contracted audiologist in January 2021 as to the etiology of the Veteran’s bilateral hearing loss. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not incurred in or caused by his in-service exposure to a grenade explosion or his MOS as a combat engineer. The examiner reasoned that the Veteran’s April 1970 and April 1971 audiological examinations showed hearing within normal limits. The examiner did not find a “threshold shift” for “DOD purposes from enlistment to separation.” The examiner further relied on a lack of objective evidence of permanent noise injury. Specifically, the examiner found the test results from the Veteran’s April 1971 separation examination was objective evidence of a lack of change in hearing from enlistment to separation.

The Board notes that the examiner did not explain what “threshold shift” meant. But based on her reference to the “DOD,” Department of Defense, the Board reasonably concludes that “significant threshold shifts (STS)” is defined as, “Hearing thresholds changed, relative to the most recent baseline, an average of 10 dB [(decibels)] or more at 2000, 3000, and 4000 Hertz (Hz) in either ear. An STS requires follow‐up testing to determine if the STS is permanent (PTS) or temporary (TTS).” Department of Defense, Hearing Health Surveillance Data Review: Military Hearing Conversation – CY18, available at https://hearing.health.mil (last accessed Apr. 2, 2021). 

Absent evidence to the contrary, the Board finds the January 2021 VA-contracted examiner was competent to examine and diagnose the Veteran and to provide a medical opinion as to the etiology of the Veteran’s bilateral hearing loss. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board finds the examiner’s overall examination, medical findings, and medical opinion credible and probative. The examiner conducted a thorough in-person examination, relied on accurate facts, considered the Veteran’s relevant medical records, medical history, and lay statements, and provided a well-reasoned medical judgment that connected the facts to her ultimate conclusion.

As stated by the examiner, the Veteran’s April 1971 separation examination audiogram does not demonstrate a significant threshold shift from his April 1970 enlistment examination audiogram. The January 2021 VA-contracted examiner reasonably explained that this objective evidence indicates a lack of change in hearing from enlistment to separation. This evidence makes it less likely than not that the Veteran’s in-service noise exposure led to his bilateral hearing loss. The Board finds the January 2021 VA-contracted examiner’s opinion more probative than the Veteran’s lay assertions of in-service hearing loss. 

The Board also notes that the January 2021 VA-contracted examiner addressed the two internet articles cited by the Veteran within his appellate brief. The examiner stated that one article is from a law firm and, thus, is not scientific evidence. The Board agrees. The internet article is entitled, “Hearing Loss and Tinnitus: Your MOS can concede exposure.” Importantly, exposure to excessive noise is not at issue in this case. Rather, the etiology of the Veteran’s hearing loss is at issue. Therefore, this article is of no assistance to the Veteran. 

The January 2021 VA-contracted examiner explained that the other article referenced “noise standards/need for hearing protection within the service.” The examiner explained “the article references that a temporary (TTS) or permanent threshold shift (PTS) is the evidence of noise injury.” The examiner then applied the article to the Veteran’s case and found that there was a lack of evidence of TTS or PTS in the Veteran’s records. The Board finds the examiner’s reasoning logical and supported by the facts. Based on the article’s reasoning, the absence of a threshold shift (TTS or PTS) indicates the Veteran’s in-service noise exposure did not lead to his bilateral hearing loss. 

The Board finds the most probative evidence of record addressing the etiology of the Veteran’s bilateral hearing loss is the January 2021 VA-contracted examiner’s opinion and rationale. Therefore, the Board finds the third element, a causal link, is not satisfied.

Accordingly, service connection for bilateral hearing loss is denied. 

2. Service connection for tinnitus

First element: A current disability

As to the first element of service connection, a current disability, the Board finds the Veteran’s statements and testimony credible and probative as to suffering from tinnitus. 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, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service “because ringing in the ears is capable of lay observation”). Therefore, the first element is satisfied. 

Second element: An in-service event, injury, or illness, or aggravation thereof

As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, for the same reasons discussed in connection with the Veteran’s claim for service connection for bilateral hearing loss, the Board finds the Veteran’s credible assertion of in-service exposure to a grenade explosion is an in-service events reasonably related to his claim of tinnitus. Therefore, the second element is satisfied. 

Third element: A causal link

As to the third element of service connection, a causal link between the Veteran’s tinnitus and in-service events, the Board concludes the evidence of record supports finding a causal link.

The Veteran has consistently stated and testified that immediately following the grenade explosion, he heard ringing in his ears. He was told that his ringing would stop in a couple of days, which it did not. In service and following service, he has continued to experience ringing in his ears. He has not been exposed to acoustic trauma following his separation from service. The Board finds his statements and testimony credible and probative. 

The January 2021 VA-contracted examiner opined that the Veteran’s tinnitus was less likely than not due to his active service because his STRs are silent for reports of tinnitus. The examiner also explained that tinnitus is associated with non-organic causes, such as smoking, arthritis, taking aspirin, alcohol consumption, higher serum total cholesterol, taking certain prescriptive medications, and head injuries. The Board does not find this opinion or rationale probative. The examiner did not explain why she rejected the Veteran’s lay assertions of tinnitus and in-service acoustic trauma in favor of the absence of documented tinnitus in his STRs. See Dalton v. Peake, 21 Vet. App. 23, 39‒40 (2007) (a medical opinion is inadequate if it does not take into account a veteran’s reports of symptoms and history, even if recorded in the course of the examination). In addition, the examiner did not discuss whether the Veteran smoked, had arthritis, was taking aspirin, consumed alcohol, had higher serum total cholesterol, took certain prescriptive medications, or had a head injury. Thus, the examiner made a conclusion with no reliance on actual facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). Therefore, the opinion and rationale are afforded no probative value.

The Board finds the Veteran’s lay testimony sufficient to establish a causal link in this case. See Savage, 10 Vet. App. at 497. He has been consistent with his recollection of events, which lends to his credibility. Therefore, the Board finds the third element is satisfied. 

(Continued on the next page)

 

Accordingly, service connection for tinnitus is granted.

 

 

T. V. Casey

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. F. Sawka, 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.