Citation Nr: 21023671 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-50 343 DATE: April 21, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The most probative evidence establishes that the appellant’s right ear hearing loss did not have its inception during active service, sensorineural hearing loss was not manifested to a compensable degree within one year of separation, and the current right ear hearing loss is not otherwise causally related to an injury or disease during his active service, to include military noise exposure. 2. The most probative evidence establishes that the appellant’s tinnitus did not have its inception during active service, did not manifest to a compensable degree within one year of separation, and the current tinnitus is not otherwise causally related to an injury or disease during his active service, or caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110; 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Navy from January 1969 to December 1970. He also served in the U.S. Naval Reserve and the U.S. Air Force Reserve. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for bilateral hearing loss and tinnitus. The appellant filed a timely Notice of Disagreement (NOD), received in July 2015. A Statement of the Case (SOC) was issued in August 2016. A timely substantive appeal was received in October 2016. The Board remanded the matter in November 2018. The October 2019 award of service connection for left ear hearing loss constitutes a full award of the benefit sought on appeal with respect to that claim. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). A Supplemental Statement of the Case (SSOC) which addressed entitlement to service connection for right ear hearing loss and tinnitus was issued in October 2019. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including other organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). Background The appellant contends that his current right ear hearing loss and bilateral tinnitus are the result of his exposure to loud noises while serving on the USS Sanctuary near Vietnam, where he unloaded the wounded and dead from Huey helicopters. The appellant’s Military Occupational Specialty (MOS) was Hospital Corpsman. Service treatment records reveal that the appellant’s hearing acuity was not tested during his March 1968 enlistment examination, although physical examination of the ears was normal and there was no perforation of the eardrums. It was noted that there were no facilities available to perform imaging studies of the chest or blood testing, and that such should be conducted at the first duty station. On his accompanying Report of Medical History, the appellant denied having, or having had, ear, nose, or throat trouble or hearing loss, or wearing hearing aids. The appellant was examined in April 1968, June 1968, and April 1969, where he was found to be physically qualified. However, it does not appear that audiological testing was conducted. Whisper testing was conducted during the appellant’s December 1970 separation examination, which was 15/15. However, pure tone threshold testing was not performed. In the Notes section, it states, “I certify that I have been informed of and understand the BUMED INSTRUCTION 6120.6,” with the appellant’s signature underneath. Thus, the appellant indicated he was informed he had been found to be fit, and if he felt he had any serious medical problems, he should so inform the examining physician. See Real v. U.S., 906 F.2d 1557, 1559 (Fed. Cir. 1990) (describing the meaning of BUMED INST. 6120). An April 1973 Report of Medical Examination states that whisper testing was performed, 15/15. On his accompanying Report of Medical History, the appellant reported that he was in excellent health and denied having, or having had, ear, nose, or throat trouble or hearing loss, or wearing a hearing aid. Medical records following the appellant’s active service include a February 1997 Report of Medical Examination and Report of Medical History. On the Report of Medical History, the appellant denied having, or having had, ear, nose, or throat trouble or hearing loss. He also denied wearing a hearing aid. The Report of Medical Examination states that an audiology work-up was later completed at St. Anthony’s Medical Center which revealed asymmetrical hearing loss. The July 1997 report from the ENT physician who conducted the work-up is of record and it states that there was no evidence of any serious illness causing the hearing loss. The probable cause was exposure to loud noises from shooting. June 1997 pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 - 20 LEFT 15 5 5 - 55 A September 2013 VA audiology consult note states that the appellant reported left ear hearing loss and bilateral constant tinnitus. Following examination and testing, the recommendation was binaural amplification. The appellant was unsure if he wanted hearing aids but he decided that he would try them as he felt he had enough issues hearing. The appellant was afforded a VA audiological examination in July 2014. However, the VA audiologist who conducted the examination stated that, although the appellant was pleasant in demeanor, test results were inconsistent and did not appear to reflect maximal effort. Even after reinstruction and encouragement, there was no improvement on his admitted responses. There was poor inter-test reliability and, as test results were considered invalid, such were not reported. A November 2014 VA primary care note states that the appellant reported that he first noticed his hearing loss about two years ago, although he thinks it was probably present longer. He also reported that he had experienced tinnitus for more than 25 years. The appellant attributed his hearing loss to exposure to daily helicopter noise during lands and when evacuating wounded soldiers. He did not have ear protection at that time. He worked as a medic over two years and reported that there were about 10,000 evacuations during that period. Submitted by the appellant and his attorney were the results of April 2015 audiological testing performed at the Iowa City VA Medical Center. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 25 45 65 LEFT 10 10 25 50 70 The 1000-4000 Hertz average was 35 decibels in the right ear and 38.75 in the left. Speech recognition using the Maryland CNC word list was 65 percent in the right ear and 65 percent in the left. The results of a December 2015 private audiological examination with nexus opinion were submitted by the appellant and his attorney. The appellant’s attorney noted in a cover letter that the audiologist had been provided a complete copy of the claims file. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 45 55 LEFT 15 15 25 55 70 The 1000-4000 Hertz average was 35 decibels in the right ear and 41.25 in the left. Speech recognition was 96 percent in the right ear and 92 percent in the left. However, it was not specified whether the Maryland CNC word list was used. The Board finds that whether the Maryland CNC word list was used or not is not relevant to the instant matter because the evidence of record establishes that the appellant has a current disability of right ear hearing loss for VA purposes. See February 2019 contracted examination report. The appellant reported that he was exposed to loud noise from helicopters daily without hearing protection while on active duty. He also endorsed some recreational noise exposure without hearing protection. The private audiologist opined that it was at least as likely as not that the appellant’s hearing loss and/or tinnitus was caused by or a result of his military noise exposure in both ears. It was noted that the appellant had a positive history of noise exposure, even though he wore hearing protectors during his military service. In a September 2016 affidavit, the appellant reported that he was constantly exposed to noise from C-46, C-47, and Huey helicopters while on the USS Sanctuary. His duties included unloading the dead and wounded and triage duties, including assessing degrees of wounds. He stated that he rode in the helicopters when the wounded and dead were being extracted from the field, but he did not wear hearing protection. Only the pilots and door gunners used hearing protection so they could communicate. The appellant was afforded a contracted audiological examination in February 2019. The claims file was reviewed. Pure tone threshold testing revealed: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 60 65 LEFT 20 20 35 65 70 The 1000-4000 Hertz average was 43.75 decibels in the right ear and 47.5 in the left. Speech recognition using the Maryland CNC word list was 94 percent in the right ear and 98 percent in the left. It was noted that the pure tone results were valid for rating purposes. The appellant reported a history of recreational hunting without the use of hearing protection. He also reported a significant history of noise exposure during military service. He stated that his continuous bilateral tinnitus began after service. The appellant reported that he fires weapons with his left hand. Following examination of the appellant and review of the claims file, the contracted audiologist opined that it was less likely than not that the appellant’s current right ear sensorineural hearing loss was incurred in or otherwise causally related to the appellant’s active service, to include conceded exposure to hazardous noise. The audiologist explained that, as no pure tone threshold testing was performed during the appellant’s enlistment or separation examinations, only whisper testing at separation, there was no reliable evidence as to whether hearing loss did or did not occur. Notably, July 1997 audiological testing showed that the appellant’s right ear hearing acuity was within normal limits, which was 27 years after completion of active service. As such, the audiologist opined that, despite hazardous noise exposure, the appellant did not incur an in-service injury to his hearing sensitivity while on active duty. Delayed-onset hearing loss due to noise exposure is unlikely to occur. Conversely, the audiologist offered a positive etiological opinion regarding the appellant’s left ear sensorineural hearing loss. This was because the audiologist found it significant that the appellant was found to have unilateral left ear hearing loss in July 1997. Despite the appellant’s report of a significant history of hunting without hearing protection, because of the lack of objective testing results from the appellant’s active service, the audiologist assumed the appellant’s left ear hearing loss occurred while on active duty. The audiologist expanded on this opinion in an addendum, where it was emphasized that the July 1997 audiological testing did not show any right ear hearing loss, although left ear hearing loss was present at that time. As there was not bilateral hearing loss at that time, the audiologist concluded that the appellant did not have an injury to right ear hearing sensitivity while on active duty. Regarding tinnitus, the contracted audiologist opined that it was less likely than not incurred in or otherwise causally related to the appellant’s active service, to include hazardous noise exposure. Based on the appellant’s own reports of tinnitus beginning about 30 years ago, the onset of such was significantly after his active service. Without an objectively verifiable noise injury, one cannot assume a relationship between tinnitus and the in-service noise exposure. The audiologist expanded on this opinion in an addendum, where it was noted that there was no evidence of tinnitus in the appellant’s service treatment records. Further, it is significant that the appellant himself reported that his bilateral tinnitus began 30 years ago, well after separation from service. The audiologist explained that delayed onset of tinnitus due to noise exposure is unlikely to occur. The February 2019 medical opinions were rendered on the basis that hazardous noise exposure while on active duty was conceded. In December 2019, the appellant’s attorney contended that service connection for tinnitus as secondary to service-connected left ear hearing loss was warranted, based upon the appellant reporting that tinnitus began roughly in 1990 and the February 2019 medical opinion determined that it was at least as likely as not that the left ear hearing loss was found to have occurred while on active duty. Alternatively, it was argued that the tinnitus opinion was inadequate for not addressing service connection on a secondary or aggravation basis. 1. Entitlement to service connection for right ear hearing loss is denied. For the reasons that follow, the Board finds that the most probative evidence establishes that entitlement to service connection for right ear hearing loss is not for application. There is no indication, nor is it contended, that sensorineural hearing loss had its inception during active duty, manifested to a compensable degree within one year of separation from active service, or was present on a continuous basis since active duty. Thus, service connection on a presumptive basis is not for application. 38 C.F.R. §§ 3.307, 3.309. Indeed, the appellant himself has reported that he first noticed his hearing loss in about 2012, but thought it had been present longer. during his July 2018 VA examination that his tinnitus began one or two years prior, more than 60 years after separation. See November 2014 VA primary care note. The Board also observes that, as delineated above, pure tone threshold testing performed in 1997 revealed the appellant’s right ear hearing loss to be within normal limits, while there was left ear hearing loss at 4000 Hz. Further, the appellant himself denied having, or having had, hearing loss in his February 1997 Report of Medical History. The Board affords little weight to the results of whisper testing conducted at separation in December 1970. The Board affords minimal probative weight to the opinion of the private December 2015 audiologist. While the private audiologist’s opinion was based in part on the appellant having worn hearing protectors in service, the appellant had reported the opposite during the clinical visit. As such, the opinion may be based, at least in part, on an inaccurate factual premise. Further, although the attorney reported that the audiologist was provided a copy of the claims file, the audiologist’s opinion appears to be based solely on the history provided by the appellant at the clinical visit. The Board notes that mere transcription of lay history as reported by a veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, Vet. App. 406, 409 (1995). In any event, the opinion is conclusory in nature. As such, it is afforded minimal probative weight. The Board notes that the February 2019 contracted audiologist described the July 1997 audiological testing as having occurred following the completion of active service. While this could be read to mean that July 1997 occurred after separation from active service in December 1970, it could also be read as the appellant having separated from active service in July 1997. Following completion of his active service in December 1970, the appellant served in the U.S. Naval Reserve and then in the U.S. Air Force Reserve. Personnel records indicate he had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). However, there is no indication, nor is it contended by the appellant or his attorney, that any current right ear hearing loss or tinnitus was incurred in or is otherwise causally related to an injury or disease incurred during a period of ACDUTRA or an injury incurred during a period of INACDUTRA. Rather, it is contended that the appellant’s military noise exposure while on active duty from January 1969 to December 1970, serving on the USS Sanctuary, was the cause of his current right ear hearing loss and tinnitus. In any event, even if the contracted audiologist was in error in describing July 1997 as the time of “completion of active service,” the Board still finds the opinions highly probative because the examiner thoroughly explained why it was significant that there was left ear hearing loss in July 1997 but not right ear hearing loss. As such, even though the contracted examiner took this to mean that left ear hearing loss was at least as likely as not incurred during active service, based in large part on the lack of objective testing during active service, the lack of right ear hearing loss even in July 1997 led the audiologist to conclude that right ear hearing loss was not incurred in or otherwise causally related to the appellant’s active service. It is not disputed that the appellant had military noise exposure while on active duty. Indeed, the February 2019 contracted opinion was rendered on the basis that hazardous noise exposure while on active duty was conceded. The audiologist found it significant that, even by 1997, the appellant’s right ear hearing acuity was within normal limits. As such, despite the lack of pure tone threshold testing at enlistment and separation from active service, the audiologist concluded that the appellant did not incur an in-service noise-related injury to his right ear hearing acuity. It was also significant to the audiologist that the appellant did have left ear hearing loss at that time and that the appellant fired guns with his left hand. While the July 2014 VA audiologist indicated that the appellant’s testing results from that compensation and pension examination were invalid due to poor inter-test reliability, the Board will afford this examination report and opinion no probative weight because, as delineated above, whether the appellant has a current right ear hearing loss disability for VA purposes during the period on appeal is not contested. 38 C.F.R. § 3.385. Further, no etiological opinion was offered. In sum, the most probative evidence establishes that the appellant’s right ear hearing loss did not have its inception during active service, sensorineural hearing loss was not manifested to a compensable degree within one year of separation, and the current right ear hearing loss is not otherwise causally related to an injury or disease during his active service, to include military noise exposure. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for tinnitus is denied. For the reasons that follow, the Board finds that entitlement to service connection for tinnitus is not warranted. There is no indication, nor is it contended, that tinnitus had its inception during active duty, was manifested to a compensable degree within one year of separation from active service, or was present on a continuous basis thereafter. Thus, service connection on a presumptive basis is not for application. 38 C.F.R. §§ 3.307, 3.309. Indeed, the appellant himself has reported on numerous occasions that his tinnitus began in or about 1990, as delineated above. As discussed above, the Board affords minimal probative weight to the opinion of the private December 2015 audiologist. While the private audiologist’s opinion was based in part on the appellant having worn hearing protectors in service, the appellant had reported the opposite during the clinical visit. As such, the opinion may be based, at least in part, on an inaccurate factual premise. Further, although the attorney reported that the audiologist was provided a copy of the claims file, the audiologist’s opinion appears to be based solely on the history provided by the appellant at the clinical visit. The Board notes that mere transcription of lay history as reported by a veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, Vet. App. 406, 409 (1995). In any event, the opinion is conclusory in nature. As such, it is afforded less probative weight. By contrast, the Board finds the opinion of the February 2019 contracted audiologist highly probative as to the question of nexus. The audiologist found it significant that, despite conceded military noise exposure, there was no evidence of an objectively verifiable noise injury. However, to the extent that this was based on a lack of in-service audiological testing, an improper reliance on the lack of medical evidence, see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the audiologist’s addendum opinion resolves this inadequacy because, even assuming that the appellant did incur such an in-service injury, the audiologist expanded on the opinion in an addendum where it was explained that, based on the appellant’s own reports of tinnitus beginning in or about 1990, approximately 20 years following separation from active service, it was less likely than not that the current tinnitus was causally related to active service because delayed-onset tinnitus is unlikely to occur. The opinion is based on a clinical examination of the appellant, a review of the claims file, consideration of the relevant medical history, and the opinion was accompanied by a detailed rationale. Further it is consistent with the lay and medical evidence of record. Regarding the December 2019 contentions of the appellant’s attorney, the Board emphasizes that the February 2019 contracted examiner offered a positive opinion regarding left ear hearing loss because of the lack of objective testing results from the appellant’s active service, which led the audiologist to assume the appellant’s left ear hearing loss had occurred while on active duty. The Board has considered the contentions of the appellant and his attorney regarding etiology and causation. Because of the inherently subjective nature of tinnitus, it is readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that “[l]ay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection”). The appellant and his attorney are competent to report symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the appellant is not competent to determine the cause of his symptoms because there is no adequate foundation in the current record to establish that he has the education, training, or clinical experience to do so. Likewise, there is no adequate foundation in the current record to establish that the appellant’s attorney has the education, training, or clinical experience to offer a medical nexus opinion relative to the cause of such. No clinician, including the December 2015 private audiologist or the February 2019 contracted audiologist, has indicated that tinnitus may be caused or aggravated by service-connected left ear hearing loss. There is no competent evidence, or any indication aside from these conclusory lay statements that the appellant’s tinnitus was caused or aggravated by service-connected left ear hearing loss. A mere conclusory generalized lay statement that service event or illness caused the claimant’s current condition, or that a service-connected disability caused or aggravated such, is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that VA medical opinions regarding service connection for tinnitus on a secondary and/or aggravation basis are not necessary to decide the claim. Rather, there is sufficient medical evidence upon which to base a decision. See Locklear v. Nicholson, 20 Vet. App. 410 (2006). In sum, the most probative evidence establishes that the appellant’s tinnitus did not have its inception during active service, did not manifest to a compensable degree within one year of separation, and the current tinnitus is not otherwise causally related to an injury or disease during his active service, or caused or aggravated by a service-connected disability. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.