Citation Nr: 21023221 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-09 683 DATE: April 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that bilateral hearing loss began during active service, within one year of separation from service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that tinnitus began during active service, within one year of separation from service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to March 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge; a hearing transcript is of record. This appeal was denied by the Board in May 2019. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a March 2020 Joint Motion for Remand (JMR), the Court vacated the Board’s May 2019 decision and remanded the appeal for action consistent with the JMR. The Board remanded the appeal in September 2020. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Duty to Assist At the February 2019 hearing, the Veteran testified that he had undergone and failed an audiological evaluation in 1968 in connection with his application for employment with California Pacific Bell. In the September 2020 Board remand, the Board directed the RO to obtain authorization and records from prior employers who may have conducted audiological evaluations of the Veteran, to included California Pacific Bell. In compliance with that directive, the RO obtained authorization from the Veteran for these records, among others, in January 2021. As noted in February 2021 notification letters and March 2021 VA Report of General Information, the RO was unable to obtain any records from California Pacific Bells. In a March 2021 notification letter, the RO informed the Veteran of such attempts and that they were unable obtain records from California Pacific Bell, among others. In the March 2021 appellate brief, the Veteran’s representative urges that VA’s duty to assist requires the RO to make inquiries with the alleged current/new owners of California Pacific Bell, the AT&T corporation. The Board finds that the record as a whole reflects that VA has made reasonable efforts to develop the Veteran’s claims, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to the matters herein decided. In doing so, the Board notes that the “reasonable efforts” provision under § 5103A(a) imposes limits on VA’s duty to assist. The efforts urged by the representative to discern the corporate owner of California Pacific Bell, or any divisions therein, beyond what the Veteran has identified and request documents from them are beyond that scope. In summary, VA has undertaken actions consistent with applicable duty-to-assist provisions and all duties owed by VA have been considered and satisfied. The Board finds that no further development is required. Service Connection The Veteran seeks service connection for bilateral hearing loss and tinnitus as a result of excessive in-service noise exposure. Specifically, the Veteran testified that he was exposed to noise from gas turbine generators and engines for approximately 4 to 8 hours daily, for a period of 12 to 13 months. See February 2019 Board hearing. The Veteran also indicated that he had ringing in his ears during service, at Fort Belvoir, and immediately after service. The Veteran testified that he used hearing protection during post-service recreational activities and had minimal post-service occupational noise exposure. Given the Veteran’s military occupational specialty, the Board previously found that in-service hazardous noise exposure is conceded. Generally, 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, such as hearing loss and tinnitus, 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). 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 following frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at the above thresholds 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. 1. Entitlement to service connection for bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus is denied. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran’s service treatment records are silent for complaints, treatment, or diagnoses relating to hearing loss or tinnitus. At June 1965 induction examination audiological testing of pure tone thresholds, in decibels, was undertaken. The results, including conversion from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI) units in parentheses, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) -5 (5) -5 (5) 5 (10) LEFT 5 (20) 0 (10) -5 (5) 5 (15) 5 (10) In addition, the audiological testing showed the Veteran had hearing loss at 6000 Hertz upon induction to service. The Board notes that the auditory threshold at the frequency of 6000 Hertz is not considered in determining hearing loss for VA purposes. Thus, the results at induction do not show a hearing loss for VA purposed. The Veteran was examined for a January1967 separation examination with audiological testing. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 0 (10) - -5 (15) LEFT -10 (5) -10 (0) -10 (0) - 0 (10) The physician noted hearing loss and recommended an ear, nose, and throat (ENT) consultation for hearing loss. On the Report of Medical History in conjunction with the separation examination, the Veteran marked “no” to ear, nose, or throat trouble and running ears. In December 2013 VA treatment records, the Veteran reported bilateral hearing loss. At that time, the Veteran reported post-service occupational noise exposure and recreational noise exposure. The Veteran also reported tinnitus for many years. In support of his claim, the Veteran submitted a February 2014 letter and private opinion from Dr. Greenburg. In that letter, Dr. Greenberg noted current and longstanding hearing problems and tinnitus. Dr. Greenberg also noted active service with work around gas turbine engines and generators. Dr. Greenberg opined that it is more likely than not that his hearing loss and tinnitus are related to his military noise exposure. In doing so, Dr. Greenberg provided no rationale as to why the Veteran’s conditions were related to his military noise exposure. The Board notes that an adequate medical examination “must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions” and must “provide sufficient detail for the Board to make a fully informed evaluation of whether direct service connection is warranted.” See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the private opinion of Dr. Greenburg is of minimal probative value. The Veteran was afforded a VA examination for hearing loss and tinnitus in October 2014. The examiner opined that the Veteran’s current hearing loss was less likely than not related to service. In support of this opinion, the examiner reasoned that comparison of induction and separation examinations showed there was no significant change in thresholds at 500 to 4000 hertz in either ear. As noted by the March 2020 JMR, the October 2014 VA opinion is inadequate because it failed to adequately explain the presence of any threshold shift shown by service examinations. Pursuant to the JMR and the Board’s remand, the Veteran was afforded another VA examination for hearing loss and tinnitus in January 2021. The examiner provided a negative opinion regarding a causal connection between the Veteran’s military service noise exposure and his current hearing loss. The examiner noted the Veteran’s occupational specialty has a high probability of hazardous noise exposure. The examiner also noted the Veteran’s report that post-service occupational noise exposure was minimal as that work was in an office setting. Nonetheless, the examiner indicated that both the January 1965 and January 1967 examinations were within normal limits, with a loss in both ears at 6000 Hertz in January 1965. The examiner also indicated that irrespective of the threshold conversions from ASA to ANSI, there was not a threshold shift in either ear in service. In fact, there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation. The examiner indicated that this is objective evidence that permanent auditory damage was not incurred on active duty from the conceded noise exposure. As auditory damage and hearing loss is not shown during service, then a nexus between the current hearing loss and service is not established. As to whether it would be appropriate to apply the conversion from ASA to ANSI to only the separation examination, the examiner indicated it would not be appropriate to convert only one set of data values. Both entrance and exit exams would require the use of the conversion tables as they were performed prior to November 1, 1967. The examiner previously indicated, however, that irrespective of the threshold conversions from ASA to ANSI, there was not a threshold shift in either ear in service. Finally, the examiner noted, that there is no evidence that the Veteran had onset of hearing loss within one year of service. In doing so, the examiner noted the separation examination and documented remarks regarding hearing loss. However, all audiological testing was within normal limits in both right and left ears. There was not an additional audiogram within a year of separation for review. As to tinnitus, the January 2021 examiner provided a negative opinion regarding a causal connection between the Veteran’s military service noise exposure and his current tinnitus. The examiner noted that the Veteran reported recurrent tinnitus that began while in active duty and has stayed the same since onset. However, the examiner noted no significant permanent threshold shift in service, even accounting for ASA to ANSI conversion. There are no complaints, reports, or treatment for tinnitus in service treatment records, or at separation. Moreover, the examiner noted no objective evidence of permanent auditory damage, with normal separation audiological evaluations. The examiner explained that because auditory damage and tinnitus were not shown during service, then a nexus between the current tinnitus and service is not established. Tt the preponderance of the evidence weighs against finding that the Veteran’s hearing loss or tinnitus began during service, within one year of separation from service, or is otherwise related to an in-service injury, event, or disease. The claims file does not contain evidence indicating the Veteran’s hearing loss or tinnitus disability onset during service or to a compensable degree within a year of discharge from service. In-service testing showed hearing within normal limits without a significant threshold shift. Although the Veteran testified that his hearing loss and tinnitus had onset during service, the Veteran marked “no” to ear, nose, or throat trouble and running ears in the Report of Medical History at separation. This inconsistency impugns the credibility of the Veteran’s recent assertions during this appeal that his hearing loss and tinnitus had onset in service. Further, service personnel and medical records do not reflect an actual decline in hearing acuity in service. The probative value of the contemporaneous evidence (showing an absence of complaints or clinical evidence of hearing loss and tinnitus) outweigh the Veteran’s current inconsistent lay assertions as to whether his disability had onset during service, or within the presumptive period after service. The Veteran does not possess the requisite medical training or expertise to make such complex medical determinations such as diagnosing a hearing loss disability for VA compensation purposes, or determining the etiology of his current hearing loss and tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, the Board notes that the January 2021 VA opinion is the most probative evidence on the question of a nexus between service and his current disabilities. The opinion it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner’s conclusions were based on the comparison of the entrance audiogram with the separation audiogram which both showed hearing within normal limits. Even converting the audiological testing result from ASA to ANSI, there were no significant threshold shift beyond testing variance. The VA examiner considered all relevant information regarding noise exposure and the history of the disabilities. This included the Veteran’s report of symptoms and post-service treatment records. The examination reports provided the Board with a clear description of all relevant data points necessary to evaluate this claim. (Continued on the next page)   Ultimately, the probative evidence weighs against any etiological relationship between the Veteran’s current bilateral hearing loss and tinnitus to his hazardous noise exposure during service. The evidence also weighs against either disability having had onset during service or within the presumptive period. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved. Entitlement to service connection is not warranted for hearing loss or tinnitus. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.