Citation Nr: 21026556 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-60 255 DATE: May 3, 2021 ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's hearing loss did not have its onset during active service or within one year of discharge and is not causally or etiologically related to any disease, injury, or incident during service. 2. The Veteran's tinnitus loss did not have its onset during active service or within one year of discharge and is not causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss are not met. 38 U.S.C. §§ 1101, 1112, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1112, 1131, 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 August 1959 to July 1963. The case is on appeal from an April 2017 rating decision. Most recently, the Board remanded the claims on appeal for additional development in January 2021. Service Connection 1. Service connection for hearing loss. 2. Service connection for tinnitus. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131, 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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. Analysis The Veteran contends that he has hearing loss and tinnitus due to service. In a January 2017 claim form, he stated that his hearing loss and tinnitus started during service and continued to the present. There is no material dispute as to the current diagnosis of hearing loss and tinnitus. With regard to in-service noise exposure and symptoms, the Veteran's service personnel records (SPRs) show that he served in the control room in radio communication. His service treatment records (STRs) include entrance and separation examinations, however, no audiometric testing was conducted during the examinations. His STRs include several treatment records from 1961 during his service aboard the USS Little Rock, including for a sprained ankle, upset stomach, nausea, burn from an iron, ingrown toenail, and a cold. There is no treatment on record for an injury from a gun firing or followup for such an injury. There are no records indicating that the Veteran experienced hearing loss or tinnitus during service. In addition, his ears and ear drums were marked as normal during the July 1963 separation examination, and nothing relevant was noted or reported. The examination includes a whisper test that indicates 100 percent accuracy for both ears. The STRs also include a November 1963 report of medical history. The Veteran marked "no" for any present or past ear, nose, or throat trouble, despite reporting a history of other problems such as sinusitis and car, train, sea, or air sickness. With regard to nexus, the Veteran was afforded an examination in regard to this claim in April 2017. The Veteran reported in-service noise exposure from 5" cannons firing at close proximity as well as rifle and pistol fire. He also reported post-service intermittent noise exposure while performing clerical work for 40 years in a factory. He noted that annual hearing testing was required for this work. The Veteran further reported being unable to recall the date or circumstances of when his tinnitus first began. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus. The examiner found that the Veteran's hearing loss is not at least as likely than not related to, caused by, or a result of in-service noise exposure. The examiner stated that the Veteran's occupation during service had a low probability for noise exposure. The examiner also reported that the file does not include complaints of hearing loss during service or for many years after discharge. The examiner found the lack of audiology treatment in the intervening years since service is significant. The examiner concluded that it is less likely than not that the Veteran's tinnitus is caused by or a result of in-service noise exposure. The examiner explained that the lack of evidence of complaints of tinnitus or hearing loss during service and for many years after service is significant. Thereafter, in a July 2017 notice of disagreement (NOD), the Veteran stated that he experienced in-service traumatic noise exposure without adequate hearing protection. He also stated that veterans are competent to report the onset hearing loss and tinnitus during service. In a July 2017 correspondence, the Veteran stated that he was exposed to noise from 5" guns, 6" guns, and small arms fire during service without hearing protection that resulted in hearing loss. He also stated that his tinnitus began in 1961 while serving aboard the USS Little Rock. He stated that he was behind a 5" gun when it fired and was thrown against a bulkhead and deck of the ship. He also stated that he was treated by a corpsman who found he had experienced head and ear trauma with hearing loss. The Veteran stated that the corpsman told him his hearing would return in a week or two and to come in for a followup in 14 days. He further stated that he has experienced tinnitus since this event. In a January 2019 statement, the Veteran's representative cited medical research that indicates tinnitus is related to disorders of the auditory pathways, most commonly sensorineural hearing loss. The representative also stated that the Veteran's STRs are inadequate for consideration because they do not include audiometric findings or a speech discrimination test as indicated by 38 C.F.R. § 3.385. In a January 2019 decision, the Board denied service connection for hearing loss and tinnitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and, in November 2019, the parties to the appeal entered into a Joint Motion for Remand (Joint Motion), in which they agreed that the Board's decision should be vacated. The Court granted the parties' Joint Motion in an Order issued in December 2019. The Joint Motion found that the Board erred in relying on the April 2017 examiner's opinion because the examiner found that the Veteran had a low probability for noise exposure without addressing the Veteran's reports of exposure to noise from large guns and weapons firing near him. The Joint Motion also found that the Board erred in failing to ensure VA associated the Veteran's reported annual employer hearing tests with the record. In a June 2020 remand, the Board requested that the RO take appropriate steps to associate the Veteran's audiological records from the civilian employer with the file and to obtain an addendum opinion in regard to the claims on appeal. Later in June 2020, the RO requested the Veteran provide authorization for VA to obtain audiological records from his civilian employer. However, the Veteran did not respond to this request. In November 2020, the RO obtained addendum opinions in regard to the claims on appeal from an otolaryngologist. This specialist examiner reviewed the Veteran's complete file and found that it less likely than not that the Veteran's hearing loss was incurred in or caused by an in-service injury, event, or illness. The otolaryngologist noted that the Veteran was exposed to significant noise during service, including from large guns, and has been diagnosed with bilateral sensorineural hearing loss and tinnitus. He also noted the Veteran's report of experiencing complete hearing loss for several days during service and trouble hearing since this event. However, he reported that the Veteran's hearing loss was not documented until 2017, which is over 50 years since service. He also reported that the Veteran denied experiencing hearing loss or ear problems at separation from service. The otolaryngologist concluded based on the available information that there is no objective evidence to confirm the hearing loss is related to service as opposed to the Veteran's years working in a factory. He also concluded that the Veteran's tinnitus is consistent with the degree of hearing loss present and that, because the hearing loss is less likely than not related to service, the tinnitus is also less likely than not related to service. Thereafter, in a January 2021 remand, the Board again requested that the RO take appropriate steps to associate the Veteran's audiological records from the civilian employer with the file. In February 2021, the RO requested the Veteran provide authorization for VA to obtain audiological records from his civilian employer. However, the Veteran again did not respond to this request. The Board finds that service connection for hearing loss and tinnitus is not warranted. In this regard, the November 2020 otolaryngologist's findings and opinions are clear and unequivocal and are based on the relevant information, including the Veteran's statements, STRs, and post-service medical records. Importantly, the VA examiner considered the Veteran's report of in-service noise exposure, acknowledged the weakness of the in-service whispered voice test, and acknowledged the absence of the post-service employment audiograms. The examiner's explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examiner did not rely solely on an absence of in-service symptoms or treatment. Rather, the examiner considered this as only one factor; the examiner also relied on the affirmative evidence of absence, including at service separation. Moreover, the examiner's reasoning, even if not specifically stated, is clear that a nexus could not be established without some objective confirmation of the symptoms in service when viewed in light of the contradictory information. On this basis, the opinion does not impermissibly rely on an absence of evidence as negative absence. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). In addition, the VA examiner agreed with the Veteran's representative's research that the Veteran's tinnitus is likely related to hearing loss and, therefore, it is also less likely than not related to service. Thus, the otolaryngologist's conclusion that the Veteran's hearing loss and tinnitus are not at least as likely incurred in or caused by an in-service injury, event, or illness is highly persuasive and probative evidence. While association of the Veteran's employer audiometric testing may have provided additional support for the claims, the claimant bears the evidentiary burden to establish all material elements of a claim. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (Fed. Cir. 2009). In this case, the Veteran was asked to provide authorization to obtain these records multiple times, but ignored such requests. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not a one-way street and that Veterans should provide information or materials relevant to their claim to VA so that VA may assist in development of the claim). The Veteran believes that he has hearing loss that is related to in-service noise exposure, however, this is a complex medical question outside the competence of a non-medical expert to determine whether such a cause-and-effect relationship exists in this particular case. Thus, this nexus question requires expert consideration and cannot be considered within the competence of a non-expert lay witness. The Veteran, as a lay person, has not established the competence needed to rebut the expert medical opinion in this case. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); Monzingo, 26 Vet. App. at 106. As such, the Veteran's opinion is not adequate to rebut the otolaryngologist's conclusion, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between service and hearing loss or tinnitus. The Board notes that the Veteran is competent to report the onset of hearing loss and tinnitus. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, his reports of an in-service onset of hearing loss and tinnitus have been inconsistent and are contradicted by the medical evidence of record. During the April 2017 examination, he reported being unable to remember the date and circumstance of the onset of tinnitus. Then, in a July 2017 correspondence, the Veteran reported a specific in-service injury during service aboard the USS Little Rock that resulted in the onset of hearing loss and tinnitus. He also reported that the injury resulted in medical treatment on at least one and possibly two occasions. However, his STRs do not include anything regarding this injury, loss of hearing, or the onset of tinnitus, despite the presence of several STRs for a variety of other injuries and illnesses during his service aboard the USS Little Rock. In addition, the Veteran's separation examination does not include any findings indicating ear, drum, or hearing problems. He also specifically denied having any history of ear problems in a November 1963 report of medical history despite reporting a history of several other conditions. Thus, the Board finds that the Veteran's inconsistent reports of experiencing the onset of hearing loss and tinnitus during service with continuity of symptoms to the present are not reliable. See, e.g., Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness) Accordingly, the preponderance of the evidence is against a finding that the Veteran's hearing loss or tinnitus had its onset during service or within one year of discharge or is causally or etiologically related to any disease, injury, or incident during service. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for hearing loss or tinnitus is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.