Citation Nr: 21025004 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-41 944 DATE: April 27, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran does not have hearing loss that is related to his military service, to include any noise exposure therein. 2. The Veteran does not have tinnitus that is related to his military service, to include any noise exposure therein. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1960 to March 1964. In July 2011, the Regional Office (RO) denied claims for service connection for bilateral hearing loss and tinnitus. In May 2018, the Veteran was afforded a hearing before the undersigned. In October 2018, the Board remanded the claims for additional development. In September 2019, the Board denied the claims. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s September 2019 decision. That same month, the Court issued an Order vacating the September 2019 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). In January 2021, the Board remanded the claims for additional development. Service Connection The Veteran asserts that he is entitled to service connection for bilateral hearing loss and tinnitus. At a May 2018 Board hearing, he testified that he was exposed to jet engine noise during his active service as he was stationed on the flight line due to his duties as a firefighter. He testified that hearing protection, when worn, did not provide adequate protection. 1. Bilateral hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, or tinnitus, when manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385. Service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Organization for Standardization (ISO) units, and the military followed suit in November 1967. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO units. The military audiograms in the instant case must be converted from ASA to ISO units. Essentially, this means adding 10 decibels to the reported findings in most frequencies, the exceptions being adding 15 decibels at 250 and 500 Hertz and 5 decibels at 4000 Hertz. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. The Veteran’s discharge (DD Form 214) shows that his specialty was fire protection specialist. The Veteran’s service treatment records show that upon entrance into service in June 1960, he had whispered voice results of 15/15. An associated audiogram is of record with charted test results. An audiogram, dated in May 1962, did not show hearing loss in either ear for VA purposes, as defined at 38 C.F.R. § 3.385. The Veteran’s separation examination report, dated in December 1963, shows that his ears and drums were clinically evaluated as normal. An audiogram did not show hearing loss in either ear for VA purposes, as defined at 38 C.F.R. § 3.385. An associated report of medical history shows that he indicated that he did not have a history of ear trouble or running ears. His stated that his usual occupation was fireman. An audiogram, dated in February 1964, did not show hearing loss in either ear for VA purposes, as defined at 38 C.F.R. § 3.385. The report notes that he had four years of nose exposure during his job with a fire department and that he always or frequently wears ear protection other than dry cotton during exposure to loud noise. As for the post-service medical evidence, a report from J.B., M.D., dated in March 2010, show that the Veteran reported having intercurrent hearing loss. The Veteran was noted to be working in the fire marshal’s office, and as a result to be testing firearms on a regular basis. He was instructed to wear his insert earphones in order to prevent additional noise trauma. An audiogram was noted to show a mild sensorineural hearing loss in the low frequencies sloping downward above 1,000 Hz. Dr. B noted that the Veteran appeared to have significant high frequently hearing loss. A VA audio examination report, dated in June 2011, shows that the Veteran reported exposure to loud noise during service from aircraft noise while working on and around the flight line. He denied high-level occupational or recreational noise exposure in civilian life. He complained of hearing loss. On examination, the Veteran had hearing loss in both ears as defined for VA purposes at 38 C.F.R. § 3.385. The examiner concluded that that the Veteran’s hearing loss was less likely than not due to his active service. The examiner explained that the Veteran’s audiograms during service show normal bilateral hearing, and that current knowledge of acoustic trauma and rapid onset noise-induced hearing loss does not provide a rational basis for delayed-onset hearing loss. A statement from Dr. B, dated in May 2012, shows that Dr. B concluded that “it is more likely than not that a significant amount of [the Veteran’s] high frequency neurosensory hearing loss may be attributed to his history of noise exposure in the service.” Dr. B noted that the Veteran had a history of noise exposure during his service, that noise exposure is cumulative, and that the seeds of his disability were sown during his exposure to loud noises causing cochlear damage. A private audiogram, dated in September 2017, received by VA in May 2018, shows that the Veteran has hearing loss in both ears for VA purposes, as defined at 38 C.F.R. § 3.385. A VA disability benefits questionnaire (DBQ), dated in June 2019, shows that the Veteran reported a history of long-standing hearing loss for at least 20 years. The Veteran was asked if he had hearing loss when he got out of the service and he reported that he couldn’t factually recall that. The examiner noted that the Veteran was asked numerous times about the onset of his hearing loss but that he would not give a more definitive answer. The examiner noted that the Veteran served in the Air Force from June 1960 to March 1964 with MOS (military occupation specialty) of fire protection specialist, and that he reported military noise exposure from being on a crash rescue team on the flight line. He was required to be on standby for B-47s and B-52s at engine run-ups. He reported that this would happen multiple times per day and that he would be on the flight line near the aircraft between half an hour to 45 minutes each time. He reported that he wore earmuff hearing protection for this. Following separation from service, the Veteran reported working as an EMT (emergency medical technician) for approximately 12 years, with exposure to sirens from ambulances, and being a police officer “for years,” with annual qualifying on weapons with HPDs (hearing protection devices) required. On examination, the Veteran had hearing loss in both ears for VA purposes, as defined at 38 C.F.R. § 3.385. The examiner noted that Dr. B’s March 2010 report did not provide an opinion on the etiology of Veteran’s hearing loss, but that Dr. B reported that the hearing loss may cause trouble in crowds and that Dr. B recommended conservation efforts. The VA examiner noted that the Veteran’s current speech recognition scores were significantly better than during his testing done in March 2010, although the 2010 test looks like it was completed at very low SL (sensation level) level. Also, the validity of that test should be called into question because SRT (speech recognition threshold) is reported as 0 dB, the PTA (pure tone average) would be closer to 25-30 dB, and bone conduction thresholds were not masked and showing extremely poor placement. The examiner stated that she could not confirm that that test was completed by an audiologist as opposed to a technician. The diagnosis was bilateral sensorineural hearing loss. The examiner indicated that there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6,000 Hz for the right ear or the left ear. The examiner concluded that Veteran’s hearing loss in both ears was not at least as likely as not caused by or a result of an event in military service. The examiner explained that the Veteran’s June 1960 entrance examination showed a normal whispered voice test, which is not a valid test. The Veteran’s December 1963 separation examination report showed that his hearing was well within normal limits between 500 Hz and 6,000 Hz. The Veteran reports that he is unsure of the time of the exact onset of his hearing loss, but he could not say that it happened during the service with certainty. The Veteran also reports post-military noise exposure occupationally as an EMT and from qualifying on weapons. Although noise exposure is conceded given Veteran’s MOS of fire protection specialist, the relationship between noise, auditory damage, and hearing loss is well documented. Auditory damage and hearing loss are not conceded based on noise alone. There is no evidence to support a nexus to relate current hearing loss to military noise and not another etiology. Therefore, it is less likely as not that the current hearing loss is related to military noise exposure. A VA opinion, dated in January 2021, shows that the examiner concluded that the Veteran’s hearing loss was less likely than not incurred in, or caused by, his service. The examiner stated the following: The Veteran’s entrance exam was a whisper test, which is not a reliable indicator of hearing loss, however, the Veteran did have a pure tone audiogram soon after enlistment (July 1960) indicating mild hearing loss at 6,000 Hz in the right ear. However, at subsequent hearing evaluations including separation, hearing was within normal limits for each ear, indicating that threshold in July 1960 was not a permeant threshold. Normal hearing at separation is objective evidence of no permanent damage from noise in service. In a letter dated in May 2012 from Dr. B[redacted], M.D., gave opinion that hearing loss and tinnitus was more likely than not related to noise exposure in service. He also indicated that tinnitus onset being “some years later the seeds of the disability were sown during his service as a result of his exposure to loud noises causing cochlear damage.” However, at 2019 C&P exam, the Veteran reported long standing hearing loss for at least 20 years, when asked numerous times, he could not give a more definitive answer, and when directly asked if he had hearing loss when he came out of service, he reported he couldn’t factually recall that. The lack of ability to recall if hearing loss was present at separation, agrees with the objective data of normal hearing at separation. The Veteran also had significant noise exposure following service as an EMT and police officer working with the fire marshal testing firearms on a routine basis. The Veteran reported he had a hearing conservation program as a police officer and wore hearing protection, but no evidence was submitted of hearing at the start to finish of hearing conservation program. Current literature does not support late onset hearing loss from hazardous noise exposure in the military. Dr. B[redacted] indicated that “seeds of the disability were sown during his service as a result of his exposure to loud noises causing cochlear damage,” however, there are only studies on animals indicating late onset symptoms from noise. In a study by Fernandez et al (2015), mice were exposed to high levels of noise, and then evaluated for hearing loss using auditory brainstem responses and otoacoustic emissions, then cochleae were evaluated for damage post-mortem. Researchers did find differences in the fine inner ear structures of mice that were exposed to high levels of sounds, versus those that were not. They cited their own 2006 study to say that noise exposure and aging do seems to have a relationship, but it is unclear what it is. According to Shanks et al (2008), “whether animals can be used to predict human responses to drugs, and other chemicals is apparently a contentious issue. However, when one empirically analyzes animal models using scientific tools, they fall far short of being able to predict human responses.” Demetrius (2005) explained further that, “Although mice share genes, organ systems and systemic physiology with humans, the two species differ significantly in terms of morphometry, physiology and life history. Humans are about 3,000 times larger than mice, and this size difference imposes constraints on physiology and life history with significant effects on the species’ ability to adapt to environmental conditions... any efforts to exploit mouse systems to elucidate human ageing or disease must take into account that vast differences in the metabolic stability of the cells within these animals. These differences derive from the contrasting evolutionary history of the species as determined by their environmental conditions and resource constraints that these conditions induce. An understanding of this history, and its signature at the cellular level- the metabolic stability, or robustness of the cellular regulatory networks are this crucial in elucidating human ageing and disease pathogenesis from mouse models.” In short, generalizing findings from rodent studies to humans is fraught with difficulties and at best, should be undertaken with great caution. The Institute of Medicine (IOM) is an independent, non-governmental, nonprofit organization with a mandate to provide the government and others with advice, counsel, and independent research on major topics in healthcare that was established in 1970 out of the National Academy of Sciences. The review the IOM did in 2006 was to review evidence in a non-biased way for examiners attempting to separate hearing loss related to noise from hearing loss associated to other factors that may come after active duty/noise exposure. The IOM indicated that, “No longitudinal studies have examined patterns of hearing loss over time in noise-exposed humans or laboratory animals who did not develop hearing loss at the time of the noise exposure. The committee’s understanding of the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely.” (IOM, 2006 p. 203). Therefore, it is less likely than not that hearing loss is related to military noise exposure. (minor changes to spelling, punctuation, and grammar). The Board finds that the claim must be denied. Although the Veteran is conceded to have been exposed to loud noise during service, he is not shown to have complained of hearing loss during service, and hearing loss is not shown during service. The Veteran has not asserted that he has had an ongoing hearing loss symptomatology during or since his service. There is no evidence of sensorineural hearing loss within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Following the Veteran’s discharge in March 1964, the earliest medical evidence of hearing loss is dated in March 2010. This is over 45 years after separation from service. The Veteran is also shown to have many years of post-service occupational exposure to loud noise as an EMT and as a law enforcement officer. Three VA medical opinions have been obtained, and they all weigh against the claim. In particular, the January 2021 VA examiner concluded that the Veteran’s hearing loss was less likely than not incurred in, or caused by, his service. This opinion is considered to be highly probative evidence against the claim. The VA examiner considered the Veteran’s reported history. She indicated that she had applied ASA-ANSI correction factors to his inservice audiograms. She concluded that the Veteran’s threshold in July 1960 was not a permeant threshold, and she supported her opinion with citation to medical studies. The January 2021 VA examiner therefore provided a sufficient explanation for her opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim is denied. 2. Tinnitus. The Veteran’s service treatment records do not show complaints, findings, or a diagnosis shown to be relevant. As for the post-service medical evidence, a VA examination report, dated in June 2011, shows that the Veteran reported an approximate ten-year history of tinnitus, and that he hears it about 12 times a month (it is noted that at his Board hearing, the Veteran indicated that 10 years was more of a figure of speech and that it had been present for many years). He stated that his tinnitus was recurrent and intermittent. The examiner stated that an etiological opinion could not be provided without resort to speculation. However, later in the report the examiner stated that the Veteran’s tinnitus is less likely than not to have been caused by military noise exposure. The examiner explained that the Veteran was discharged in 1964, and that he reported a ten-year history of tinnitus. A statement from Dr. B, dated in May 2012, shows that he states that “noise exposure is accumulative and even though his tinnitus may have begun some years later the seeds of the disability were sown during his service as a result of his exposure to loud noises causing cochlear damage.” A VA DBQ, dated in June 2019, shows that the Veteran reported that he has had tinnitus “all my life, I can tell you honestly.” When questioned if had it prior to service, he said “no.” When questioned repeatedly and with prompting questions if he had tinnitus in service, the Veteran said that he cannot say that that he did. The VA examiner concluded that the Veteran’s tinnitus was less likely than not due to his active service. The examiner explained that the Veteran did not report onset of his tinnitus during the service, even after significant prompting and trying to jog his memory with certain situations where one would expect to hear tinnitus (such as being on the flight line for work all day and returning to your quiet bunk, did you notice it then?). There is no report of tinnitus in service treatment records, at separation or in the medical records, until the time of his first C&P claim in 2011. The Veteran also has occupational noise exposure after the military. The Veteran did not mention his tinnitus to Dr. B during his March 2010 evaluation. Though excessive noise exposure on active duty is conceded given his MOS of fire protection specialist, and tinnitus is reported today, there is no nexus of auditory damage on active duty to relate current report of tinnitus to military noise. A VA medical opinion, dated in January 2021, shows that the examiner concluded that the Veteran’s tinnitus is less likely as not incurred in, or caused by, his service. The examiner stated the following: In a letter dated in May 2012 from [Dr. B], he indicated that “tinnitus onset being some years later the seeds of the disability were sown during his service as a result of his exposure to loud noises causing cochlear damage.” Current literature does not support late onset tinnitus, and the Veteran had significant noise exposure following service as an EMT and police officer, and while working for the fire marshal testing firearms on a regular basis. The Veteran had a hearing conservation program, but the results of hearing conservation exams were not made available. While Dr. B[redacted] is well qualified to diagnose tinnitus, he did not indicate if he was able to review the Veteran’s C-file for evidence of tinnitus. The Veteran is not able to recall tinnitus in service, and he noticed a worsening 10 years prior to his 2011 C&P exam, as he started in his lay statement from June 2012. It is well known in medical literature that tinnitus from hazardous noise would have occurred at the time of the hazardous noise, and not later. As stated by the Institute of Medicine (2006), “As the interval between a noise exposure and onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases.” Dr. B[redacted] indicated that “seeds of the disability were sown during his service as a result of his exposure to loud noises causing cochlear damage,” however, there are only studies on animals indicating late onset symptoms from noise. In a study by Fernandez et al (2015), mice were exposed to high levels of noise, and then evaluated for hearing loss using auditory brainstem responses and otoacoustic emissions, then cochleae were evaluated for damage post-mortem. Researchers did find differences in the fine inner ear structures of mice that were exposed to high levels of sounds, versus those that were not. They cited their own 2006 study to say that noise exposure and aging do seem to have a relationship, but it is unclear what it is. According to Shanks et al (2008), “whether animals can be used to predict human responses to drugs, and other chemicals is apparently a contentious issue. However, when one empirically analyzes animal models using scientific tools, they fall far short of being able to predict human responses.” Demetrius (2005) explained further that, “Although mice share genes, organ systems and systemic physiology with humans, the two species differ significantly in terms of morphometry, physiology and life history. Humans are about 3,000 times larger than mice, and this size difference imposes constraints on physiology and life history with significant effects on the species’ ability to adapt to environmental conditions... any efforts to exploit mouse systems to elucidate human ageing or disease must take into account that vast differences in the metabolic stability of the cells within these animals. These differences derive from the contrasting evolutionary history of the species as determined by their environmental conditions and resource constraints that these conditions induce. An understanding of this history, and its signature at the cellular level- the metabolic stability, or robustness of the cellular regulatory networks are this crucial in elucidating human ageing and disease pathogenesis from mouse models.” In short, generalizing findings from rodent studies to humans is fraught with difficulties and at best, should be undertaken with great caution. (minor changes to spelling, punctuation, and grammar). The Board finds that the claim must be denied. Although the Veteran is conceded to have been exposed to loud noise during service, he is not shown to have complained of tinnitus during service, and tinnitus is not shown during service. The Veteran has not asserted that he has had an ongoing tinnitus symptomatology since his service. There is no evidence of tinnitus within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Following the Veteran’s discharge in March 1964, the earliest medical evidence of tinnitus is dated in June 2011. This is over 46 years after separation from service. The Veteran is also shown to have many years of occupational exposure to loud noise as an EMT and as a law enforcement officer. Three VA medical opinions have been obtained, and they all weigh against the claim. In particular, the January 2021 VA examiner concluded that the Veteran’s tinnitus was less likely than not incurred in, or caused by, his service. For the reasons discussed supra, this opinion is considered to be highly probative evidence against the claim. Nieves-Rodriguez. With regard to tinnitus, the VA examiner explained that current literature does not support late onset tinnitus, that it is well known in medical literature that tinnitus from hazardous noise would have occurred at the time of the hazardous noise, and not later, and she noted that the Veteran had significant noise exposure following service as an EMT and police officer, and while working for the fire marshal testing firearms on a regular basis. Id. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching these decisions, the Board has considered Dr. B’s opinion. This opinion is afforded reduced probative value, as it is not shown to have been based on a review of the Veteran’s claims file, or any other detailed and reliable medical history. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In addition, Dr. B did not discuss why he ruled out the Veteran’s post-service history of exposure to loud noise as the cause of his hearing loss or his tinnitus, nor did he support his opinion with citation to findings in service, or thereafter for many years, or to clinical studies. With regard to hearing loss, this opinion is also somewhat equivocal in its terms, attributing only a “significant portion” of the Veteran’s current hearing loss to his military service. The January 2021 VA examiner considered Dr. B’s opinion, which is over eight years old, and she explained why she did not find it persuasive as to either hearing loss or tinnitus. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Dr. B’s opinion is therefore insufficiently probative to warrant a grant of either of the claims. The issues on appeal are based on the Veteran’s contention that hearing loss and tinnitus were caused by service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran has not asserted that he had the claimed conditions during service, or that he has had ongoing symptomatology since his service. The issues in this case involve a delayed onset of symptoms and they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s service treatment records and post-service medical records have been discussed. They do not show complaints or findings of hearing loss or tinnitus during service, or for many years following separation from service. Given the foregoing, the Board finds that the service and post-service medical evidence outweighs the Veteran’s contentions to the effect that service connection is warranted for hearing loss and tinnitus. Accordingly, the Board finds that the weight of the evidence is against the claims, and they are denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.