Citation Nr: 21024920 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-33 638 DATE: April 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s bilateral (left and right ear) hearing loss and tinnitus incepted during his service, or manifested to a compensable degree within a year of his separation from service, or are otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to January 1968. This appeal to the Board of Veterans’ Appeals (Board) is from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims previously were before the Board in October 2018 and remanded for further development and consideration – namely, to have the Veteran examined for medical opinions concerning the etiology of his bilateral hearing loss and tinnitus, especially in terms of whether related or attributable to his service. The remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain “chronic” diseases, including sensorineural hearing loss and tinnitus, also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran’s separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran asserts that his bilateral sensorineural hearing loss and tinnitus are from repeated exposure to excessively loud, so hazardous, noise during his service and consequent injury (acoustic trauma), specifically, continuous loud noise from working on a computer/data processing machine. There is no contention that either condition onset during the Veteran’s service or even within one year of his separation from service in January 1968, so by January 1969. But service connection is still permissible if it is shown these conditions, even if diagnosed sometime later, were incurred in service. See 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for bilateral hearing loss The evidence of record confirms the Veteran has sufficient hearing loss in each ear, so bilaterally, to be considered a ratable disability for VA compensation purposes. VA audiological testing in June 2019, done pursuant to the Board’s October 2018 remand directive, confirmed he has sufficient sensorineural hearing loss in each ear to meet the threshold minimum requirements of 38 C.F.R. § 3.385. According to this VA regulation, a ratable hearing loss disability for VA compensation purposes requires an auditory threshold of 40 decibels or greater in one of the specified frequencies of 500, 1000, 2000, 3000 or 4000 Hertz; or at least three of these specified frequencies showing an auditory threshold of 26 decibels or higher; or when speech recognition scores using the Maryland CNC test are less than 94 percent. The Veteran’s hearing loss in both ears exceeded these thresholds during the June 2019 audiological examination. More specifically, the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 45 50 60 65 LEFT 50 55 70 75 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 82 percent in the left ear. The Veteran’s military occupational specialty (MOS) was Data Processor Machine Operator. He says he was exposed to excessively loud noise while working on one of the first computers (data processing machines) used by the military. While this MOS is not typically considered to have a high level of noise exposure, he is competent to report the circumstances of his service, namely, that the data processing machine was extremely loud. 38 U.S.C. § 1154(a). But even if, for the sake of argument, true, there still must be probative evidence indicating a relationship or correlation (“nexus”) between the Veteran’s current bilateral hearing loss and that activity in service to, in turn, warrant the granting of service connection. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). And it is in this equally critical respect that the evidence is less favorable to his claim. In support of his claim, the Veteran submitted a private audiological examination from Dr. S.N. conducted in January 2015. While this record is unclear as to whether it conforms with VA requirements for rating the severity of hearing loss (see 38 C.F.R. §§ 4.85, 4.86), it nonetheless shows the Veteran had a diagnosis of bilateral sensorineural hearing loss. But Dr. S.N. did not opine on the etiology of the Veteran’s hearing loss, but did note that he reported his noise exposure as: “banking industry around sorter for checks 18 years, heavy construction related to petroleum industry for 32+ years, military but with no VA benefits.” He also reported not wearing hearing protection while hunting. As a result of the October 2018 Board remand, the Veteran underwent the VA audiological examination already mentioned in June 2019. The examiner determined that it is less likely than not the Veteran’s bilateral hearing loss is related to his noise exposure in service because his service treatment records (STRs) indicate no significant permanent shift in hearing thresholds greater than normal measurement variability from the time of his entrance into service in 1964 until his separation in 1968. The examiner explained that this is evidence of no permanent auditory damage on active duty. Further, the Veteran’s MOS of data processor machine operator has a low probability of noise exposure, meaning the noise exposure is not considered hazardous. The examiner also considered it significant that the Veteran did not report any hearing loss until about 40 years after his separation from service and had other occupational and recreational noise exposure that included operating heavy equipment beginning 35 years prior to the examination and hunting without hearing protection. The examiner thus concluded that, with no evidence of acoustic damage and no conceded noise exposure during service, there is no nexus supporting bilateral hearing loss being the result of the Veteran’s service. The prior statement from Dr. S.N. cited several potential explanations for the Veteran’s bilateral hearing loss, and most of them (in fact, nearly all) had nothing to do with his service in the military. Moreover, the VA compensation examiner since has categorically disassociated the Veteran’s hearing loss from his service entirely. Accordingly, his claim for service connection for bilateral hearing loss must be denied. There is no reasonable doubt to resolve in his favor concerning the posited correlation between this disability and his service, so the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus The Veteran attributes his tinnitus to the same source of noise in service that he predicated his hearing loss claim on. The Veteran's STRs do not contain evidence that he experienced tinnitus at any time while in service – either in the way of a relevant subjective complaint (e.g., notable symptom, etc.) or objective clinical finding (pertinent diagnosis). This lack of mention of tinnitus or finding of it includes during his December 1967 separation examination. His service, as mentioned, ended a short time later in January 1968. In cases involving combat, VA is prohibited from drawing a negative inference from silence in the STRs. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Conversely, in cases, as here, where this inference is not prohibited [i.e., non-combat scenarios], the Board may use silence in the STRs   as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service [or where, as here, the injury claimed is not alleged to have occurred in combat], the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements.). Buchanan had held that lay evidence such as that proffered by the Veteran and his comrades is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records (STRs, etc.). In this circumstance, that is, where a claimed injury, disease or event is not alleged to have occurred during combat, the Board must make two preliminary findings to rely on this negative inference (see Kahana): (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the STRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. So, it is true the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, as mentioned there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan, supra.   The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Here, while the Veteran served during the Vietnam era, he served stateside and did not engage in combat, and there is no suggestion that his STRs are incomplete – at least in relevant part. So, the fact that he did not complain of tinnitus while in service and did not receive this diagnosis is probative indication that he did not have this disease while in service. Tinnitus also was not shown, certainly not to the required minimum compensable degree of at least 10-percent disabling, within one year of the Veteran’s separation from service – so by January 1969 – to in turn warrant presuming it was incurred during his service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). During his June 2019 VA examination, the Veteran reported an onset of tinnitus just 10 to 12 years prior, so at the earliest in 2007. Indeed, there is no evidence, medical or otherwise, showing a complaint of tinnitus at any time in the interim, so for over 39 years following his separation from service, thus, for almost four decades. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). See also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection where the Veteran-claimant had failed to account for lengthy time period between service and initial symptoms of disability). Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, 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). This means tinnitus is the type of chronic condition, per se, since contemplated by 38 C.F.R. § 3.309(a), which the Veteran can establish is related to or the result of his service by showing continuity of symptomology since his service under the provisions of 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran’s treatment records are grossly unremarkable for subjective complaints of tinnitus, much less objective confirmation of it for many years after conclusion of his service. As already alluded to, there were some 39 years between his separation from military service and his reported onset of tinnitus. Also, significantly, it was him that cited that time of onset (i.e., 10 to 12 years prior to his 2019 VA examination). Thus, even he concedes to not experiencing this disease continuously since his service. The January 2015 private audiology examination from Dr. S.N. shows the Veteran had complained of tinnitus to his primary care provider, but there was no specification of when he had first complained of this disease – including in relation to when he was in the military.   The June 2019 VA compensation examiner cited the Veteran’s reported tinnitus onset 10 to 12 years prior to that evaluation (so, again, in 2007 or thereabouts) and found that his tinnitus is at least as likely as not a symptom associated with his bilateral hearing loss – which, for the reasons and bases already discussed, is not attributable to his military service. Service connection may be granted on a secondary basis for disability that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. But inasmuch as the Veteran’s bilateral hearing loss is not due to his military service, his tinnitus - a symptom of the hearing loss – necessarily cannot be service connected on a secondary basis. Further, the VA examiner explained that the Veteran’s MOS as a data processing machine operator has a low probability of hazardous noise exposure, and he did not report tinnitus until about 40 years after his separation from service. The examiner ultimately surmised that, given there is no evidence of acoustic damage during service, the delayed onset of the Veteran’s tinnitus, and no conceded hazardous noise exposure, there is no nexus to support that his tinnitus being caused by his military service. Thus, although this disease as mentioned is subjective in nature, as explained by the VA examiner, absent indication of tinnitus in service or for many years (indeed decades) following the Veteran’s separation from service, there is not the required finding of tinnitus owing to his service. Rather, the medical evidence of record shows his tinnitus is caused by his bilateral hearing loss, which, in turn, is not service connected. (Continued on the next page)   Accordingly, this claim for service connection for tinnitus is denied. Moreover, there is no reasonable doubt to resolve in the Veteran’s favor concerning this determinative issue of causation, so the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.