Citation Nr: 21024024 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-51 546 DATE: April 21, 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, 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, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are not 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 in the United States Navy from November 1981 until his honorable discharge in November 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In November 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Boston, Massachusetts. A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 30 days to allow for the submission of additional evidence. In March 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain an addendum opinion concerning the nature and etiology of the Veteran’s bilateral hearing loss and tinnitus. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including tinnitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his bilateral hearing loss is related to in-service hazardous noise exposure. As a preliminary matter, the Board notes that the Veteran has a current disability of bilateral hearing loss and in-service hazardous noise exposure. Therefore, the question for the Board is if the evidence of record supports a finding that the Veteran’s bilateral hearing loss is related to his active service. The Board finds that the evidence of record does not support a finding that the Veteran’s bilateral hearing loss is related to active service. The Veteran was afforded a VA examination in August 2017. The August 2017 VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not (less than 50 percent probability) caused by or the result of military service because the Veteran’s hearing thresholds at the time of entrance and separation were within normal limits and that noise induced hearing loss will not progress once [the hazardous noise exposure] is stopped. The RO obtained an addendum opinion in April 2020. The April 2020 VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The April 2020 VA examiner explained that the Veteran’s service treatment records reflect hearing within normal limits and with no significant permanent positive threshold shift from his enlistment examination to his separation examination. The April 2020 VA examiner also provides a detailed rationale addressing the Veteran’s assertions and provided articles on occupational acoustic trauma. Furthermore, the Board notes that the Veteran’s post-service occupation as a mechanic resulted in post-service hazardous noise exposure. The April 2020 VA examiner concludes that given the normal hearing on the Veteran’s entrance and separation examinations, the research supporting no progression of hearing loss after noise cessation, and numerous other causes [of hearing loss] (including noise exposure after service), a nexus is not established. Accordingly, entitlement to service connection for bilateral hearing loss is denied. The Board notes that the Veteran’s representative asserts that the April 2020 VA examiner is incorrect that the Veteran cannot experience delayed hearing loss due to military noise exposure, citing He[n]sley v. Brown, 5 Vet. App. 155 and 38 C.F.R. § 3.303(d). In Hensley v. Brown, the Court of Appeals for Veterans Claims (Court) determined that a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing the current hearing loss is causally related to injury or disease suffered in service and that the Board may not deny service connection based solely on normal audiometric results upon separation from service. See Hensley v. Brown, 5 Vet. App. 155, 165 (1993). In contrast, here there is no evidence of a causal relationship between the Veteran’s bilateral hearing loss and his active service. There is simply evidence of current hearing loss, in-service hazardous noise exposure, and post-service hazardous noise exposure. The April 2020 VA examiner considered numerous causes of bilateral hearing loss including aging, genetics, environmental causes, and medical conditions concluding that normal hearing on both the entrance and separation examinations, the research supporting no progression of hearing loss after noise cessation and numerous other causes (including noise exposure after service), a nexus cannot be established. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus began during service and has existed since that time and/or it is related to in-service hazardous noise exposure. As a preliminary matter, the Board notes that the Veteran has a current disability of tinnitus and in-service hazardous noise exposure. Therefore, the question for the Board is if the evidence of record supports a finding that the Veteran’s tinnitus is related to his active service The Board finds that the evidence of record does not support a finding that the Veteran’s tinnitus is related to active service. The Board notes that the Veteran’s representative asserts that the VA examiner never explained what tinnitus was when he was asked if he experienced the symptoms and that the Veteran testified at the Board hearing that he has experienced tinnitus since discharge. See Third Party Correspondence (October 11, 2020). However, the assertion by the Veteran’s representative is inaccurate because at no time during the Board hearing did the Veteran testify that his tinnitus began during service or existed since his discharge. In contrast, the Veteran specifically testified that “[he] [c]an’t really recall [if he experienced tinnitus in service]…but [he has] experienced it for a number of years…” See November 2019 Board hearing transcript, p. 9. Furthermore, during the Board hearing, the Veteran’s representative noted that “[h]e told me what was wrong with him. I put down that he’s experienced tinnitus…and when he went to the hearing exam, the examiner asked him if he experienced tinnitus…he didn’t know what that meant, because I’m the one who put it down on the thing…he told me he was experiencing the buzzing…” The statements in the record pertaining to tinnitus reflect: “[R]inging in the ears that I have today…” See May 2017 Statement in Support of Claim (VA Form 21-4138). Claim for tinnitus [already on appeal]. See May 2017 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). During the August 2017 VA examination, the Veteran denied recurrent tinnitus and denied tinnitus at the time of the examination. See August 2017 VA examination. “No history of…tinnitus.” See Medical Treatment Records furnished by Social Security Administration (SSA) – Massachusetts Rehabilitation Commission Disability Determination Services report dated March 18, 2018. During an initial care coordination home telehealth treatment plan with the Bedford VAMC, the Veteran denied tinnitus. See April 3, 2019 Bedford VAMC treatment records. Claim for tinnitus [already on appeal]. See October 2019 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). The Veteran’s representative testified “[H]e told me what was wrong with him. I put down that he’s experienced tinnitus…and when he went to the hearing exam, the examiner asked him if he experienced tinnitus…he didn’t know what that meant, because I’m the one who put it down on the thing…he told me he was experiencing the buzzing…” See November 2019 Board hearing transcript. “Not much [hearing problems] in the service. As the years go on, seems I know it more and more and I do have some ringing sometimes…” See November 2019 Board hearing transcript, p. 7. “Can’t really recall [if I experienced tinnitus in service]…but I have experienced it for a number of years…” See November 2019 Board hearing transcript, p. 9. “[Tinnitus] just comes and goes…[d]oesn’t really bother me…[it] just comes and then it just goes away…[it] [d]oesn’t really stay all that long but I can hear it for a little while and then it just goes away and when it comes back, I can’t really tell you…days and times and stuff like that…” See November 2019 Board hearing transcript, p. 10. Although the Board finds that the Veteran is credible [even to the detriment of his claim], the Board finds that the statements by the Veteran’s representative are inconsistent with the statements of the Veteran, inconsistent with the record, and are not credible. Accordingly, entitlement to service connection for tinnitus is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, 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.