Citation Nr: 21026245 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-26 921 DATE: April 30, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A bilateral hearing loss disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and there is insufficient competent and credible evidence that hearing loss disability was caused by active service. 2. A tinnitus disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and there is insufficient competent and credible evidence that the tinnitus disability was caused by active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107(b)(2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2020). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Navy from October 1959 to August 1963 and from February 1965 to February 1967. The Board previously remanded the claims in April 2019 and February 2021. The claims again are before the Board. Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability 2. Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Certain diseases, to include organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran was diagnosed with a hearing loss disability or tinnitus within one year of service the above provision is not applicable. To the extent that there are allegations of ongoing symptoms from service that constitute manifestations of either disability, the Board finds these assertions less than credible, for the reasons discussed in greater detail below. 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his current bilateral hearing loss and tinnitus disabilities are the result of in-service noise exposure. Specifically, during the Veteran’s Board hearing and in a January 2019 statement, he contended that his hearing loss and tinnitus were caused by Naval service, specifically due to an incident where he was performing maintenance on a radar system and the ship’s foghorn sounded 15 feet from him for 5 minutes. The Veteran reported that he was completely deaf for several hours after this event and had a continuity of ringing in his ears from that time. He contended that the event caused permanent hearing loss and that he ruptured his left ear drum, possibly coincident with an ear infection for which he received treatment in 1961. In a January 2019 statement from the Veteran’s wife, she explained that she married the Veteran about one year after his discharge from the Navy, that his hearing has been poor ever since she has known him, and that it has gotten worse over the last 50 years. In a March 2020 statement, the Veteran’s representative indicated the Veteran claimed his hearing loss and tinnitus were due to a fog horn blast on the USS Arneb in late 1966, suggesting that the normal testing from February 1965, referenced by the examiner, would not have been relevant to the analysis because the Veteran’ hearing would have been affected after that date. Service personnel records show that the Veteran’s Naval duties were as a radar technician at Naval Air Stations and aboard ships. As noted in the April 2019 Board remand, “Although his Naval occupation would not be associated with routine exposure to loud noise, it is consistent with working in a ship’s superstructure where the incident with the foghorn could occur. Therefore, the Board finds that there was exposure to loud noise on that occasion.” Service treatment records show that the Veteran was treated for a left ear infection in May 1961, for which he was prescribed ear drops, hot packs, and penicillin. There was no mention of acoustic trauma or ear drum rupture. On a February 1965 reenlistment examination, an audiometric test was normal. In a contemporaneous Report of Medical History, the Veteran denied a history of ear trouble. The Veteran’s hearing acuity was tested only using the whisper voice method on discharge examinations in 1963 and 1967. On both occasions, the examiner noted no ear abnormalities or perforations. There was some evidence of post-service noise exposure, as in July 1972 the Veteran used his VA benefits to train for his pilot’s license and his November 2013 application for compensation benefits noted that he had a pilot’s license. In a March 2004 VA doctor’s appointment, the Veteran stated that his tinnitus began 3 weeks previously. In his November 2011 claim, the Veteran reported that his hearing loss and tinnitus began in February 1960, but that he never received treatment for the symptoms. In March 2012, the Veteran complained that his tinnitus had been ongoing for years. The Veteran was afforded for a VA examination in March 2013 and the April 2019 Board remand found the associated examination report to be inadequate. A July 2013 addendum opinion noted the normal audio examination in 1965 and that other evaluations were only whispered voice testing. The audiologist indicated that hearing thresholds during the March 2013 testing were “consistent with the normal aging process. Since there was only one audio exam performed during his military service, it would [be] impossible to render an opinion regarding hearing loss as a result of noise exposure during military service without resorting to speculation.” In his August 2013 notice of disagreement, the Veteran argued, “I served on Navy ships with heavy gun fire. My records show this. The tinnitus is directly related to this activity [as well].” The Veteran was afforded a VA examination in January 2020. The examiner noted diagnoses of hearing loss and tinnitus disabilities. The Veteran reported that his chief complaint was a lack of hearing. The hearing acuity and tinnitus problems began in 1960 to 1961. He contended that the onset was due to a foghorn blast about 10 to 15 feet away from the Veteran for more than 5 minutes. He was not using hearing protection at the time. Post-service noise exposure included flying aircraft. Following examination, the examiner concluded that it was less likely than not that the Veteran’s hearing loss disability or tinnitus was incurred in or caused by service. The rationale noted the Veteran’s reports of hearing loss and tinnitus onset during service in 1960 to 1961 with chronic and ongoing symptoms since that time. That said, during his 1963 and 1967 separation examinations, as well as his re-enlistment examination in 1965 there were no reports of hearing loss, tinnitus, and/or any other ear-related dysfunction. The Veteran’s hearing was found to be within normal limits in 1965, which the audiologist found suggested that the Veteran did not experience any acoustic trauma during his initial enlistment period from 1959 to 1963. The Veteran’s MOS also had a low probability of noise exposure. In a March 2020 statement, the Veteran’s representative argued that the January 2020 opinion failed to consider potential hearing loss and tinnitus due to a foghorn blast in 1966 and possible post-service noise exposure while obtaining a private pilot’s license. In addition, the whisper voice test at separation was an inadequate measure to show if a threshold shift had occurred. An October 2020 VA addendum opinion noted that during the Veteran’s VA examination he had reported hearing loss and tinnitus from 1960 to 1961 while on active service and after being exposed to noise from a foghorn. That said, the exit examinations in 1963 and 1967 and the re-enlistment examination from 1965 did not include reports of tinnitus or other ear-related dysfunction. The Veteran’s hearing was within normal limits in 1965, which suggests he did not experience any acoustic trauma during his first enlistment period from 1959 to 1963. Furthermore, the Veteran’s MOS included a low probability of noise exposure and he did not receive any badges, medals, or other awards consistent with hazardous noise exposure. In addition, in March 2004 the Veteran reported that his tinnitus had started only a few weeks previously – or decades after service. Based on the foregoing, it was less likely as not that the current tinnitus was due to service. A February 2021 VA addendum opinion is of record. The reviewing audiologist concluded that it was less likely than not that the Veteran’s hearing loss disability or tinnitus was incurred in or caused by service. The rationale noted the Veteran’s reports of hearing loss / tinnitus onset during service in 1960 to 1961 with chronic and ongoing symptoms since that time. That said, during his 1963 and 1967 separation examinations, as well as his re-enlistment examination in 1965 there were no reports of hearing loss, tinnitus, and/or any other ear-related dysfunction. The Veteran’s hearing was found to be within normal limits in 1965, which the audiologist found suggested that the Veteran did not experience any acoustic trauma during his initial enlistment period from 1959 to 1963. Furthermore, the Veteran’s MOS included a low probability of noise exposure and he did not receive any badges, medals, or other awards consistent with hazardous noise exposure. Moreover, there was no objective evidence to indicate that the tinnitus began during service. The examiner also noted, “Despite his claims that his tinnitus began during his service, after noise exposure from a foghorn/gun fire, the objective evidence indicated that his ear/hearing were found to be normal following the reported date of that noise exposure.” Thus, the Veteran has current bilateral sensorineural hearing loss and tinnitus disabilities. The pertinent inquiry, then, is whether the bilateral hearing loss and tinnitus disabilities were caused by or are otherwise related to any incident of service. Thus, the sole evidence linking the Veteran’s bilateral hearing loss disability and tinnitus to his active service are his contentions. The Board has considered the Veteran’s current contentions that he had tinnitus and decreased hearing acuity that began during service, specifically due to a foghorn incident in 1960 or 1961 and/or heavy guns. The Veteran, however, has made contradictory statements in that regard, later reporting that the foghorn incident was in 1966. Credibility is an adjudicative and not a medical determination. The Board has “the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.” Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the “inherent characteristics” of the Veteran’s statements as to the onset of his decreased hearing acuity and tinnitus are inconsistent with the objective medical record. As to his tinnitus, in March 2004 the Veteran reported that his tinnitus had started 3 weeks earlier. As to both the hearing loss and tinnitus, the Veteran originally contended that the disabilities were due to heavy guns with the onset of the disabilities in 1960 and now claims that the symptoms were due to a foghorn incident in 1960 or 1961. In his February 1965 Report of Medical History, however, he specifically denied a history of ear trouble. As such, the Board finds any contention as to ongoing decreased hearing acuity and/or tinnitus from 1960 or 1961 to warrant low credible weight. The Board has also considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Thus, the Board acknowledges that the Veteran’s reports of decreased hearing acuity and tinnitus in service and immediately after service cannot be considered not credible simply because there is no supporting medical evidence. In this case, however, it is not simply a matter of the absence of evidence as to in-service ear problems. As noted, the Veteran denied ear problems in February 1965 prior to entrance into his second period of service, which was supported by a normal audiogram at that time. Even if the foghorn incident occurred in 1966, the 1967 discharge examination is also silent for any injury or sensed hearing loss. Records of outpatient care during both periods of service contain entries on many minor matters but are silent for any ear injury or prolonged loss of hearing from a foghorn blast as would be expected for an event as described by the Veteran. Although the report of the occurrence of the foghorn incident is consistent with his duties on either ship, there is insufficient evidence that an acute injury or chronic loss of function occurred. In addition, in March 2004, the Veteran reported tinnitus onset 3 weeks previously. Had the Veteran been experiencing ongoing problems with tinnitus and decreased hearing acuity from 1960/1961, as he now claims, the Board finds it reasonable to conclude that he would have reported ongoing tinnitus in March 2004 and ongoing ear problems in February 1965. The Board recognizes that there may have been some acute left ear problems in 1961, as evidenced by his treatment for a left ear infection, but during this incident the record does not include any lay or medical evidence suggesting a chronic hearing loss or tinnitus disability and given the subsequent normal audiogram in 1965 and the Veteran’s contemporaneous denial of a history of or current ear problems the evidence is against finding ongoing issues from 1961. In light of these circumstances, the Board concludes there is no credible evidence of record of continuity of bilateral decreased hearing acuity or tinnitus from 1960 or 1961. The sole medical evidence of record is against a link between the Veteran’s current bilateral hearing loss and tinnitus disabilities and his active service. As noted previously, the Board has found inadequacies with the 2013 and 2020 examination reports. The Board, by contrast, finds the February 2021 VA medical opinions of significant probative value. The previous reports had been found inadequate for failing to reconcile the Veteran’s assertions of acoustic trauma from heavy guns and the foghorn incident. The Board previously found that the Veteran’s reports regarding the foghorn incident were consistent with the circumstances of his service. The crucial question, therefore, is whether the Veteran incurred a hearing loss or tinnitus disability as a result of the claimed acoustic traumas. Although the February 2021 opinion continued to note that the Veteran’s MOS was inconsistent with noise exposure and he did not have any awards demonstrating acoustic trauma, the medical professional specifically considered the Veteran’s reports of exposure from guns and a foghorn, but found that given the 1965 audiogram showed normal hearing acuity that the Veteran did not suffer acoustic trauma in 1960 or 1961 that caused a bilateral hearing loss or tinnitus disability. The Board finds this conclusion consistent with the contemporaneous evidence and adequate for adjudication purposes. The medical professional also discussed the absence of any noted problems during the 1963 and 1967 separation examinations, while also noting that only whispered voice testing was done on those occasions. That said, examination of the ears was normal in 1963, 1965, and 1967. In light of all the foregoing, the Board finds the conclusions of the medical professional that it was less likely than not that the Veteran’s current bilateral hearing loss and tinnitus disabilities were incurred in or caused by service to be of significant probative value. In reaching that conclusion, the Board is cognizant of the Court’s holding in Hensley v. Brown, 5 Vet. App. 155 (1993) that, even though disabling hearing loss may not be demonstrated at separation, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service. In this case, however, there is no evidence of such a connection other than the Veteran’s lay statements that, as will be discussed in greater detail below, are afforded no probative weight. As to the Veteran’s general contentions that his hearing loss disability was incurred in or is otherwise caused by his service, the Board finds his opinions to be of low probative weight. Although the Veteran may be competent to report decreased hearing acuity or ringing in his ears, the Veteran’s reports of a continuity of symptoms from service have been found to have low credible weight. Absent such continuity from service, the Board does not find the Veteran to be competent to attribute any current bilateral hearing loss or tinnitus disability to activities in service occurring decades ago. In addition, there is no evidence that the Veteran has the education, training, and experience necessary to reach such a conclusion. As such, the Board affords his representations as to a relationship between his current bilateral hearing loss and tinnitus disabilities and in-service noise exposure no probative weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, no medical professional has found that the Veteran’s bilateral hearing loss disability or his tinnitus was caused by service. The Veteran’s contentions of ongoing symptoms from service are contradicted by his more contemporaneous lay statements. In light of the evidence, the Board concludes that the preponderance of the credible evidence is against the bilateral hearing loss and tinnitus claims, and that service connection for a bilateral hearing loss disability and tinnitus is not warranted. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.