Citation Nr: 21022818 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 20-17 961 DATE: April 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s tinnitus had its onset during his active duty service. 2. The preponderance of the evidence is against finding that the Veteran’s diagnosed hearing loss began during active service or is otherwise related to in-service military noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to October 1965. These matters come before the Board of Veterans’ Appeals (Board) from a September 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2020 and December 2020, at which time the issues were remanded for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for tinnitus The Veteran contends that he began experiencing symptoms of tinnitus during active duty service. The Board concludes that the Veteran has tinnitus that is related to conceded noise exposure in service. 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). 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 (2002). The Veteran specifically maintained in a November 2018 statement that he was exposed to machine gun and other artillery fire during service despite working in an office setting. The Veteran’s DD-214 shows that he received an expert badge for use of the M-1 rifle, as well as a sharpshooter badge for the carbine rifle. Military noise exposure is therefore conceded. At his July 2018 VA examination, the Veteran reported that he could not remember when he first noticed his tinnitus symptoms but reasoned it must have been while he was in service because he shot guns at the range several times without hearing protection. He reported beginning to notice a bilateral hissing sound. The examiner concluded it was less likely than not that tinnitus was caused by or a result of military noise exposure. However, the Board finds the opinion inadequate to adjudicate the Veteran’s claim because the examiner concluded without explanation that tinnitus was likely associated with the Veteran’s hearing loss rather than the result of military noise exposure. There is no evidence in the record that contradicts the Veteran’s competent and credible testimony regarding the onset and progression of his symptoms. The evidence regarding the onset of tinnitus is in equipoise. Thus, affording the Veteran the benefit of the doubt, entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss is due to in-service acoustic trauma. As noted above, in-service noise exposure is conceded. The Veteran has been diagnosed with hearing loss that meets the criteria for impaired hearing for VA compensation purposes. 38 C.F.R. § 3.385. The question for the Board is whether it is related to service. The Board concludes that, while the Veteran has a current diagnosis of bilateral hearing loss for VA compensation purposes and evidence shows that he had in-service noise exposure, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of bilateral hearing loss began during service or is otherwise related to an in-service injury, event, or disease. 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), (d), 3.385. The Veteran’s service treatment records (STRs) do not include any complaints, treatment or diagnoses related to hearing loss. The Veteran did report having a history of ear, nose or throat issues in his October 1962 Report of Medical History, but an audiology evaluation in the same month finds that his hearing was normal. His August 1965 separation examination report similarly noted normal hearing acuity shortly before discharge. The Board remanded this matter twice to obtain an adequate VA examiner’s opinion that addressed the Veteran’s conceded in-service noise exposure. In October 2020, a VA audiologist concluded that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service. The examiner reasoned that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which was objective evidence of no permanent auditory damage on active duty from conceded noise. There were no reports of either complaints or treatment for hearing in the available service treatment records or at separation. Although noise exposure was conceded and the relationship of noise, auditory damage and hearing loss was well established, the examiner stated that auditory damage and hearing loss were not conceded based on noise exposure alone. The VA audiologist stated that current medical literature did not support late onset hearing loss from military noise exposure. The examiner also noted that the Veteran had significant post-service noise exposure occupationally, which is more likely the etiology if hearing loss is related to noise. The VA audiologist further stated that the medical article written by Sharon Kujawa and referenced in prior Board remands was a study conducted with an animal model that cannot be applied to humans, especially in light of military noise exposure not being the only isolated noise exposure for Veteran. In a January 2021 addendum opinion, a VA otolaryngology physician assistant concluded it was less likely than not that the Veteran’s hearing loss was related to hazardous military noise exposure. In support of this conclusion, the examiner stated that from an extensive review of records, it appears that no significant hearing loss or hearing threshold shifts occurred during the Veteran’s three years of active duty military service. The examiner stated that the etiology of the Veteran’s hearing loss was likely a combination of age and day-to-day noise exposure in over 50 years after his separation from service. The examiner further stated that there was no current medical research or literature that accepts the idea of delayed onset hearing loss in humans. Based on some recent studies with rodents (the Kujawa study cited in the prior Board remand), the examiner noted that a few investigators have speculated that a delayed onset of neural, central or cochlear changes may occur as a result of noise exposure. However, the examiner stated that there were 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 were well documented in other areas of biomedical investigation, including research in the treatment of cancer and chronic diseases. The VA examiner stated that the report by the Institute of Medicine currently remains the most comprehensive review regarding effects of noise exposure in veterans. The Institute of Medicine report found that there was no scientific basis on which to conclude that hearing loss that appears many years after noise exposure can be causally related to that noise exposure if hearing was normal immediately after the exposure. The Board finds that the opinions of the October 2020 and January 2021 VA examiners are probative because the opinions are based on the Veteran’s medical history and statements. The respective opinions provide explanations that contain clear conclusions based on the evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions were not based solely on normal hearing at separation but rather addressed changes in the Veteran’s hearing during active service and whether those changes could be attributable to the conceded in-service acoustic trauma. Hensley v. Brown, 5 Vet. App. 155 (1993). The examiners possess the necessary education, training, and expertise to provide the requested opinions. The examiners considered the Veteran’s history of noise exposure in service and provided an adequate rationale for the opinion. There is no contradictory medical opinion in the Veteran’s record on this issue. The Veteran contends his current hearing loss disability is the result of military noise exposure. Although lay persons are competent to provide opinions on some medical issues, the etiology of hearing loss is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to the opinions of the October 2020 and January 2021 VA examiners who had specifically considered the Veteran’s reported in-service noise exposure. In sum, service connection for hearing loss is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107. J. Komperda Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeyemi, B. 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.