Citation Nr: 21026123 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-29 101 DATE: April 29, 2021 ORDER 1. Entitlement to service connection for a bilateral hearing loss disability is denied. 2. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A bilateral hearing loss disability did not have its onset in service, sensorineural hearing loss was not manifested within one year following service discharge, and a bilateral hearing loss disability is not otherwise related to service. 2. Tinnitus did not have its onset in service, it was not manifested within one year following service discharge, and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to August 1970. In March 2019, the Board remanded the claims for service connection for a bilateral hearing loss disability and tinnitus for new VA examinations because it found the January 2015 VA medical opinions were inadequate. The Board finds there was substantial compliance with this development. The case now returns to the Board for further appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the purpose 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 these frequencies 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. Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus, which are organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends he has a bilateral hearing loss disability as a result of exposure to acoustic trauma in service. The Veteran served as field artillery crewman; and therefore, he believes exposure to acoustic trauma was highly probable. The Veteran stated his hearing loss began in service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a bilateral hearing loss disability. The reasons follow. As to evidence of a current disability, the Veteran’s bilateral hearing loss meets the requirement of a current bilateral hearing loss disability for VA purposes as documented in the January 2015 and November 2019 VA audiological evaluations. 38 C.F.R. § 3.385. Therefore, the facts establish that the first element of a service-connection claim is met. As to an in-service disease or injury, the Board has conceded the Veteran had in-service noise exposure, as he has described in statements and based upon his MOS as a field artillery crewman. Therefore, the facts establish that the second element of a service-connection claim is met to the extent that the Veteran claims in-service noise exposure. When the Veteran submitted his claim for service connection in September 2014, he wrote that hearing loss “began in service.” However, when he was examined in January 2015 and November 2019, he reported hearing loss began years after service. The November 2019 examiner confirmed with the Veteran that his hearing impairment onset was approximately 10 years ago. Thus, the Board finds as fact that the Veteran did not experience hearing loss during service. While the Board has conceded in-service noise exposure, it does not find as fact that a bilateral hearing loss disability had its onset in service or within one year following service discharge. Separately, in the November 2019 VA examination report, the examiner wrote that the Veteran had “1 year [of] combat service.” While the Veteran served in Vietnam, his DD Form 214 and service personnel records do not show that he is in receipt of an award or decoration indicative of having engaged in hand-to-hand combat during service. See VAOPGCPREC 12-99 (Oct. 1999) (defining engaged in combat with the enemy as requiring that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality). Mere presence in a combat zone is not sufficient to show that the Veteran actually engaged in combat with enemy forces. Id. Thus, the provisions of 38 U.S.C. § 1154(b) are not implicated in this circumstance. Again, VA concedes in-service noise exposure, but it does not concede that the Veteran experienced a bilateral hearing loss disability during service. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the Veteran's service treatment records (STRs) do not document complaints of, treatment for, or a diagnosis of hearing loss. STRs show the Veteran was seen for a variety of ailments including rabies and urology-related symptoms. The January 1968 entrance Report of Medical Examination (RME) showed normal hearing. More importantly, an August 1970 discharge RME showed that clinical evaluation of the ears and hearing was normal. Audiological evaluation with the whispered ear test was normal with 15 out of 15 correct. Additionally, the Veteran was assigned a rating of “1” in each category of the Physical Profile Serial of PULHES, where H stands for hearing and ears. The rating of “1” under H represents a high level of fitness for hearing. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Thus, the Veteran’s hearing was tested at discharge, and hearing loss was not demonstrated. The January 2015 VA examination’s conclusions were found to be inadequate by the Board in the March 2019 remand and, therefore, the medical opinion will not be discussed herein. However, what the Veteran reported to the examiner is relevant and probative. At that examination, the Veteran reported delayed onset hearing loss and noise exposure in the years following service discharge. At the November 2019 VA examination, the Veteran described the onset of his hearing loss as having occurred approximately 10 years ago, and the examiner confirmed such fact twice during the examination. The examiner provided a negative nexus opinion. The examiner opined that the Veteran demonstrated normal hearing at entry and exit. The examiner noted that while hearing thresholds were not tested at separation, it is less likely than not that the Veteran's high frequency hearing loss is related to his one year of combat service and more likely the result of extensive civilian occupational noise exposure, as the Veteran reported working as a carpenter for 30+ years (which he also reported at the 2015 VA examination). The examiner noted the Veteran had a negative whisper test in 1970 when being discharged from service. In relying on this finding of a negative whisper test, the examiner explained that in 2003, Pirozzo, et. al. found that the "whispered voice test is a simple and accurate test for detecting hearing impairment and compares favorably with the portable audioscope . . . . Negative likelihood ratios were zero or close to it, showing no hearing impairment when the test is negative." The examiner added that the Veteran’s hearing loss began more than 35 years after separation from service. The examiner added that research does not support the concept of delayed onset of hearing loss after thresholds are recorded as essentially normal after noise exposure. The examiner cited to the landmark report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), where the Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be casually related to that noise exposure if hearing was normal immediately after the exposure. Based on the anatomical and physiological data available on the recovery process following noise exposure, the IOM concluded it is unlikely that such delayed effects occur. The examiner wrote that this study remains the definitive consensus in this matter. The Board affords the November 2019 VA opinion high probative value because the examiner reviewed the claims file, examined the Veteran, and provided a well-reasoned conclusion, which conclusion was based on the specific facts of the Veteran’s case and medical literature. In the September 2020 Informal Hearing Presentation, the Veteran’s representative argued that the whisper test is inadequate to deny service connection because it does not contain the Maryland CNC Controlled Speech Discrimination Test or test at the frequencies specified in 38 C.F.R. § 4.85(a). The Board does not find this argument to diminish the probative value of the November 2019 VA opinion for several reasons. One, the examiner provided an explanation for why the whisper test is reliable. Two, the examiner confirmed with the Veteran that he did not notice hearing loss until approximately 10 years prior, which would not place hearing loss as having its onset in service. Three, the examiner did not solely base the medical opinion upon the discharge whisper ear test, but rather cited to medical literature that refuted the idea of late onset hearing loss 35 years after service. Although the Veteran wrote on his September 2014 formal claim form that his hearing loss began “in service,” the Board finds that what the Veteran reported during the January 2015 and November 2019 examinations to be more reliable as to the onset of his hearing loss, as the facts documented within the examination reports were based on a conversation, where the examiner would have been able to obtain more detailed facts, and both examiners documented that the Veteran’s hearing loss began years after service. Thus, the Board finds that the facts documented in the VA examination reports to be more probative regarding on the onset of the Veteran’s hearing loss. During the January 2015 and November 2019 VA examinations, the Veteran was diagnosed with bilateral sensorineural hearing loss, which is a chronic disease, where service connection can be granted if the chronic disease manifests to a compensable degree within one year following service discharge. As noted above, the Board does not find the Veteran’s contention that hearing loss began in service to be reliable, as the Veteran was clear in telling both VA examiners that his hearing loss began years following service discharge. The first documentation of sensorineural hearing loss is in the January 2015 VA examination, which is 35 years after service discharge. There is no competent evidence upon which to find that bilateral sensorineural hearing loss manifested within one year following service discharge. Thus, the preponderance of the evidence is against presumptive service connection for bilateral sensorineural hearing loss. While the Veteran has alleged that his current bilateral hearing loss disability is caused by in-service noise exposure, he is not competent to offer opinions as to the etiology of hearing loss, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the Veteran’s bilateral hearing loss disability and service to weigh against the November 2019 VA opinion. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss disability. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus. The Veteran contends he has tinnitus as a result of exposure to acoustic trauma in service. The Veteran served as field artillery crewman; and therefore, he believes exposure to acoustic trauma was highly probable. The Veteran stated his tinnitus began in service. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a tinnitus. The reasons follow. As to evidence of a current disability, the Veteran reports he experiences tinnitus. Tinnitus is a disability capable of lay observation, and the Veteran is competent to report he experiences tinnitus. Both the January 2015 and November 2019 VA examiners diagnosed tinnitus. Therefore, the facts establish that the first element of a service-connection claim is met. As to an in-service disease or injury, the Board has conceded the Veteran had in-service noise exposure, as he has described in statements and based upon his MOS as a field artillery crewman. Therefore, the facts establish that the second element of a service-connection claim is met to the extent that the Veteran has reported in-service noise exposure. When the Veteran submitted his claim for service connection in September 2014, he wrote that tinnitus “began in service.” However, when he was examined in January 2015 and November 2019, he reported tinnitus began after service. At the time of the January 2019 examination, he reported the onset approximately 15 to 20 years prior. At the November 2019 examination, he reported it began three to four years after service. The Board finds that what the Veteran reported to the examiners to be more probative as to the onset of his tinnitus, as he was responding to a specific question asked by the examiner, and both responses are consistent in tinnitus having its onset after service. Thus, the Board finds as fact that the Veteran did not experience tinnitus during service. While the Board has conceded in-service noise exposure, it does not find as fact that a tinnitus had its onset in service or within one year following service discharge, as the Veteran has reported the onset (at the earliest) as being three to four years following service. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. The November 2019 VA examiner provided a negative nexus opinion. The examiner opined that although hearing loss and tinnitus are commonly present together, they are not necessarily mutually occurring and have varying causes, to include certain medications, stress, anxiety, nicotine, sodium, excessive caffeine, etc. The examiner added that hearing loss does not cause tinnitus or vice versa. The examiner went on to say that, according to Noise and Military Service, Implications for Hearing Loss and Tinnitus: Committee on Noise-Induced Hearing Loss and Tinnitus Associated with Military Service from World War II to the Present, “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 symptoms following an earlier noise exposure is extremely unlikely.” The Board affords the November 2019 VA opinion high probative value because the examiner reviewed the claims file, examined the Veteran, and provided a well-reasoned conclusion, which conclusion was based on the specific facts of the Veteran’s case and medical literature. In the January 2015 notice of disagreement, the Veteran, through his representative, stated although the Veteran changed the onset of tinnitus from service to 15 to 20 years before the January 2015 VA examination, it is plausible that he misunderstood the question or was reporting some additional ear symptoms. However, during both examinations, the Veteran reported an onset of tinnitus after service. The Board finds that what the Veteran reported during the January 2015 and November 2019 examinations to be more reliable as to the onset of tinnitus, as the facts documented within the examination reports were based on a conversation, where the examiner would have been able to obtain more detailed facts, and both examiners documented that the Veteran’s tinnitus began years after service. The consistency within the two examination reports bolsters its reliability. In the September 2020 Informal Hearing Presentation, the Veteran’s representative stated it is improper for VA to deny service connection for tinnitus for lack of a diagnosis or lack of treatment prior to a complaint of the disorder since doing so relies on circumstances that are not required for the grant of service connection. However, the Agency of Original Jurisdiction denied the claim for service connection for tinnitus due to a lack of a nexus between tinnitus and service. Similarly, the Board is denying the claim for the same reason. Therefore, the representative’s argument does not change the outcome of the claim. Tinnitus is a chronic disease, where service connection can be granted if the chronic disease manifests to a compensable degree within one year following service discharge. As noted above, the Veteran has reported the onset of tinnitus as occurring three to four years following service discharge, which is evidence against a finding that it manifested within one year of service discharge. Thus, the preponderance of the evidence is against presumptive service connection for tinnitus. While the Veteran has alleged that his current tinnitus is caused by in-service noise exposure, he is not competent to offer opinions as to the etiology of tinnitus, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between tinnitus and service to weigh against the November 2019 VA opinion. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for tinnitus. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.