Citation Nr: 21024543 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-04 578 DATE: April 23, 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 Veteran’s hearing loss did not have its onset in service, or manifest to a compensable degree within one year of service discharge and is not otherwise related to service. 2. The Veteran’s tinnitus was not present in service or manifest to a compensable degree within one year of service discharge and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1961 to February 1965. In February 2019 and November 2020, the Board remanded these issues for additional development. Service Connection The Veteran is seeking service connection for bilateral hearing loss and tinnitus that he contends had their onset during service as a result of exposure to excessive noise. 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). A November 2016 VA audiogram confirms the Veteran currently has bilateral sensorineural hearing loss disability for VA purposes. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). So, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). 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). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as “chronic” by VA, which includes hearing loss and tinnitus. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s DD-214 shows he served as a weapons mechanic, a military occupational specialty (MOS) likely associated with routine noise exposure. In addition, his service records include hearing conservation data sheets and audiometric testing of the Veteran’s hearing acuity following noise exposure. Thus, it is plausible that he had some acoustic trauma in service. 38 U.S.C. § 1154(a). However, based on the evidence, the Board finds that service connection for hearing loss and tinnitus is not warranted. There are no findings or diagnosis of either disorder shown in service treatment records, including at separation. These records include an in-service hearing conservation data sheet dated in September 1961 which shows the Veteran was exposed to noise from gunfire during basic training, hunting and target practice. Audiometric examination of the Veteran’s hearing acuity showed puretone thresholds in the right ear of 5(20), 10(20), 5(15), 5(15), and 10(15) decibels at 500, 1,000, 2,000, 3,000, and 4,000 Hz respectively, and for the left ear at the same frequencies were 5(20), 10(20), 15(25), 5(15), and 15(20) decibels. [The numbers in parentheses represent conversion of ASA (American Standards Association) units to ISO-ANSI (International Standards Organization-American National Standards Institute) units in effect on and after November 1, 1967.] To convert ASA units to ISO-ANSI units, 15 decibels were added at 500 Hz, 10 were added at 1000, 2000, and 3000 Hz, and 5 were added at 4000 Hz. An October 1963 hearing conservation data sheet shows the Veteran was exposed to noise from the hanger shop. After conversion from ASA to ISO-ANSI units, puretone thresholds in the right ear were 15(30), 15(25), 0(10), 0(10), and 5(10) decibels at 500, 1,000, 2,000, 3,000, and 4,000 Hz respectively, and for the left ear at the same frequencies 0(15), 0(10), -10(0), -5(5), and 5(10) decibels. The Veteran’s separation audiogram conducted in January 1965, after conversion from ASA to ISO-ANSI units, showed puretone thresholds in the right ear of 5(20), 5(15), -5(5), -10(0), 10(15), and -10(0) decibels at 500, 1,000, 2,000, 3,000, and 4,000, Hz respectively, and for the left ear at the same frequencies, 5(20), -5(5), - 10(0), -10(0), and 5(10) decibels. None of the in-service audiometric testing results reflect hearing thresholds that meet the criteria for disability under VA regulations. See 38 C.F.R. § 3.385. There is also no medical evidence suggesting hearing loss and tinnitus were diagnosed within the one-year presumptive period after service. 38 C.F.R. §§ 3.307, 3.309. Likewise, there is insufficient evidence of continuity of symptoms to enable an award of service connection under the provisions pertaining to chronic diseases. Fountain, supra. The Veteran made no reference to hearing problems until he filed his original claim for service connection in 2016, more than 50 years after discharge from service in 1963. The first pertinent clinical records associated with the claims file is the November 2016 VA examination report. At that time, the Veteran reported the onset of hearing loss about 20 years ago, stating that he felt aging contributed to his worsening hearing. He denied otosurgery, vertigo/dizziness. Last year he had some drainage from his right ear with a “burst” eardrum after a flight to Alaska. He took antibiotic eardrops, and after several weeks was told the perforation had healed. He reported that his mother has hearing loss which he attributed to her advanced age. After reviewing the file (including the Veteran’s history of in-service noise exposure), the audiologist concluded that the Veteran’s hearing loss and tinnitus were less likely than not caused by, or a result of, military noise exposure. It was explained that Veteran reported onset of hearing loss about 20 years ago with gradual progression since that time. Service treatment records do not indicate any significant declines in hearing when comparing evaluations across his service era and do not indicate damage to the auditory system sufficient to result in tinnitus. In addition, current research and the Institute of Medicine (IOM) statement do not support the delayed onset of hearing loss following noise exposure or the delayed onset of damage to auditory structures which could result in tinnitus following past noise exposure. See November 2016 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). Based on the evidence in this case, the Board finds that service connection for hearing loss and tinnitus is not warranted. The fact that the Veteran was exposed to some degree of noise during service does not by itself establish a basis for the grant of service connection. Rather, the noise exposure must cause the hearing loss and tinnitus. As noted above, service treatment records are entirely negative for complaints of such audiological problems, and there is a lengthy period between service and the first documented complaints decades later. The Veteran’s failure to report any pertinent complaints until more than 50 years later is persuasive evidence that he was not experiencing any relevant hearing problems in the immediate years after service. Also, by his own admission at his 2016 VA audio evaluation, the Veteran did not experience hearing problems until the mid-1990s, placing its onset well after service, which is still more than 30 years after service. In other words, his own account of the history of his hearing loss and tinnitus does not indicate a service onset. Careful consideration has also been given to a recent February 2021 medical opinion from a private audiologist who concluded that the precipitous nature of the Veteran’s hearing loss would be expected with his history of noise exposure as a jet engine mechanic with US Air Force. Although the private opinion is supportive of the claim, it is limited in terms of its ultimate probative value as the audiologist did not provide a rationale for the opinion. The opinion also fails to account for the lengthy gap for which there is absolutely no clinical documentation of hearing problems from the time of the Veteran’s discharge from service in 1963 until the examination in 2016. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of a physician to provide a basis for his or her opinion affects the weight or credibility of the evidence). Here, the Board finds greater probative value in the VA opinion as the audiologist considered the relevant medical history, provided a conclusive opinion, and offered clear reasoning explaining why the Veteran’s current bilateral hearing loss and tinnitus are not related to service. The audiologist concluded that the noise exposure in service was not the cause of his hearing loss and tinnitus when also considering current scientific data and the reported onset of symptoms almost 50 years after service. In doing so the audiologist did not base her opinion merely on the absence of contemporaneous documentation of these conditions, but instead, considered this as one of several relevant factors. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In light of the other evidence of record, the VA opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). The private opinion, while not discounted entirely, is entitled to less probative weight in view of the remaining evidentiary record. (Continued on the next page)   To the extent the Veteran asserts his hearing loss and tinnitus are nevertheless etiologically related to service, such an assertion treads into the realm of medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Specifically, he lacks the requisite medical expertise to provide a competent medical opinion as to the etiology of his hearing loss and tinnitus. Accordingly, the preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.