Citation Nr: 21028667 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-40 266 DATE: May 11, 2021 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding the Veteran's tinnitus disability was incurred in or the result of active duty service. 2. The preponderance of the evidence is against finding the Veteran's bilateral hearing loss was incurred in or the result of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1131; 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 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 November 1957 to April 1962. This appeal is before the Board of Veterans' Appeals (Board) from a July 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is as follows: In an April 2019 Board decision, the Board denied the Veteran's claims. However, he appealed the Board's decision to the U.S. Court of Appeals for Veteran's Claims (CAVC) and in June 2020 a Joint Motion for Partial Remand (JMPR) was issued after finding the Board's April 2019 decision relied on an inadequate VA examination. The Veteran's claims returned to the Board and in September 2020 the Board remanded his claims for further development. In January 2021, the RO issued a supplemental statement of the case denying the Veteran's claims and his claims have returned to the Board. Lastly, for the reasons set forth below, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For chronic diseases like tinnitus, the second and third elements of the service connection analysis may be established by showing continuity of symptomatology. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Walker, 708 F.3d 1331. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." See Barr, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Regarding service connection claims for hearing loss, this disability is defined by regulation. Specifically, under 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the above 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, precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Based on knowledge of service audiometric practice it is assumed that a veteran's service department audiometric tests prior to January 1, 1967 were in ASA units and require conversion to the currently used ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units, and conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. In this case, given that the Veteran received audiograms prior to January 1, 1967 the Board will presume the ASA standard was used and the audiograms will be converted to the currently used ISO units. For certain chronic diseases, such as tinnitus and hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks entitlement to service connection for hearing loss and tinnitus which he alleges are the result of in-service noise exposure. Turning to the evidence of record, the service personnel records (SPRs) indicate that while in-service he was a Fireman Apprentice and an Electrician's Mate third class. The service treatment records (STRs) indicate that only a whisper voice test was conducted during the Veteran's 1957 entrance examination. On his 1957 report of medical history he denied ear, nose, or throat trouble. During his 1962 separation examination, he received an audiological examination and the Puretone thresholds (converted to ISO units in parenthesis) are as follows: Hertz 500 1000 2000 3000 4000 Right 0 (15) 0 (10) 0 (10) 0 (10) -5 (0) Left 5 (20) 5 (15) -5 (5) 0 (10) 5 (10) In October 2015, a VA treatment record indicates that during an audiology consultation he denied experiencing tinnitus. A November 2015 VA treatment record indicates he denied experiencing hearing loss. A VA audiological examination report from a Dr. B.S. in August 2016 revealed the following results: Hertz 500 1000 2000 3000 4000 Right 30 25 55 - 70 Left 35 20 65 - 75 An August 2016 VA treatment record indicates he had his hearing aids adjusted and the record does not include any indication he suffered from tinnitus. The following four statements were all received in October 2016. First, the Veteran wrote a statement alleging that in-service he was responsible for "stacking and stowing spent shell casings during a gun training exercise" which caused "ringing in my ears that persisted for weeks and an immediate short-term hearing loss." Additionally, he stated that a majority of his duties "were in the ships engine room." In a separate statement, he alleged that he did not wear hearing protection during the gun training exercise and "that is when the ringing started, that I still hear to this day." Third, the Veteran's younger brother attested to the Veteran's hearing being worse upon separation from service and that the Veteran "complained of ringing in his ears." Third, the Veteran's daughter stated the Veteran has "complained about ringing in his ears and hearing trouble" for as "long as [she] can remember." A June 2017 VA hearing loss and tinnitus examination report included a review of the claims file, a recitation of complaints and medical history, and an audiological examination which revealed the following: Hertz 500 1000 2000 3000 4000 Right 25 20 50 55 55 Left 25 25 50 60 60 A Maryland CNC test determined his right and left ear to be 98 percent each. As to his tinnitus, the Veteran subjectively reported that he has experienced tinnitus since active service and "reportedly recurs at least weekly, with each episode lasting a few seconds." The examiner opined the Veteran's hearing loss and tinnitus were not the result of active service. In August 2017, a fellow serviceman who served with the Veteran wrote a letter to the Board attesting to ships duties involving working in the engine room and that he also suffers from hearing loss and tinnitus. Lastly, he stated that the Veteran, "spoke regularly about ringing sounds in his ears. We were young and simply accepted this as part of the job." An October 2017 private medical record indicates the Veteran received treatment from a Dr. G.P. and the Veteran subjectively reported his hearing loss symptoms began "60 years ago and have lasted 60 years." Specifically, stating his hearing loss and tinnitus began during his "tour of duty as ship's mechanic on board a U.S. Navy diesel ship." The comments section includes the following comment: "Patient with [history] of hearing loss for the past 10 years." A separate comments section includes the following comment, "Patient's hearing loss and tinnitus is more likely than not due to acoustic trauma sustained while on active duty." In April 2019, the Board denied the Veteran's claims; however, the Veteran appealed the Board decision to CAVC and in June 2020 a JMPR was issued that determined the Board's April 2019 decision relied on an inadequate VA medical opinion and examination. Specifically, the JMPR ordered the Board to remand for, "medical opinions that address the lay statements submitted by the Appellant, and also an opinion that provides a separate and distinct opinion, including adequate rationale, relating to the issue of service connection for tinnitus," and to acquire any outstanding records. In January 2021 the Veteran underwent a VA hearing loss and tinnitus examination report which included a review of the claims file, a recitation of complaints and medical history, and an audiological examination which revealed the following: Hertz 500 1000 2000 3000 4000 Right 35 30 55 70 70 Left 30 20 55 70 70 A Maryland CNC test determined his right ear was 82 percent and his left ear was 88 percent. The Veteran subjectively reported experiencing noise exposure in service such as service in the engine room up to 8 hours at a time, exposure to gunfire, and exposure to an explosion. As to post service noise exposure the Veteran stated he used power tools weekly and denied utilizing hearing protection. The examiner ultimately determined his hearing loss was less likely than not the result of active duty service, specifically opining: There is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage resulting in a drop in hearing on active duty from conceded noise. While there is no entry audiogram in the service records, the Veteran's hearing is presumed to have been within normal limits at entry. There is no report of complaint/treatment for hearing decrease at separation. The Institute of Medicine report (Noise and Military Service, September 2005) concluded that, based on current knowledge, noise induced hearing loss occurs immediately (i.e. there is no evidence to support delayed onset of noise induced hearing loss years after the exposure). Although noise exposure is conceded and the relationship of noise exposure, cochlear auditory damage and hearing loss is well-established, cochlear auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of cochlear auditory damage to relate current hearing loss to military noise exposure and not another etiology. The evidence is against the nexus in this case, as hearing was within normal limits at separation. It is less likely than not that the veteran's hearing loss is caused by or the result of military noise exposure. Lay evidence is present indicating that the Veteran endorsed difficulty hearing after separation from service. However, in November of 2005, the veteran reportedly denied hearing loss during a VA evaluation. There is no officially documented audiogram demonstrating a hearing loss within numerous years of the veteran's separation from service As to his tinnitus, the Veteran subjectively reported that he has experienced tinnitus since the early 1960's and became noticeable "coming out of the engine room." The examiner determined it was less likely than not his tinnitus was the result of active duty service, specifically opining: There must be a nexus of auditory damage to relate current tinnitus to military noise exposure and not another etiology. The evidence is against the nexus in this case, as the Veteran's hearing was within normal limits at the time of his separation. It is less likely than not that the Veteran's tinnitus is caused by or the result of military noise exposure. Although the Veteran reports a significant history of noise exposure in the military, working on a diesel-powered ship in a very noisy room, there must be a nexus of auditory damage to which the tinnitus can be correlated. Though lay evidence indicates that he noticed tinnitus throughout his life after military service, he reportedly denied tinnitus in October of 2015 during an audiology appointment. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding the Veteran's tinnitus and bilateral hearing loss were incurred in or the result of active duty service. As an initial matter, for certain chronic diseases, such as organic diseases of the nervous system, which includes tinnitus and sensorineural hearing loss, the Board first considers entitlement to presumptive service connection under the provisions of 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Here, the Veteran has essentially endorsed a continuity of hearing loss and tinnitus symptomatology since service through his own statements and additional lay statements. Although the Veteran is competent to report on such matters, the Board does not find his statements to be credible as they are inconsistent with the evidence of record. Indeed, the STRs are silent for treatment or complaints related to tinnitus and hearing loss and he did not indicate such symptoms during his March 1962 separation medical examination. It thus appears that the Veteran was not reporting hearing loss or tinnitus at a time when he now says that he had such symptoms, and this evidence tends to undermine any assertion of recurrent symptoms since service. While lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, the first post-service treatment for hearing problems, including tinnitus, were documented in 2016. The Board also acknowledges an October 2017 private record from the Veteran's own ENT Specialist that indicates he has struggled with hearing loss "for the past ten years." Thus, the earliest the evidence of record contains credible evidence of the Veteran voicing complaints of or receiving treatment for hearing loss or tinnitus is 2007, 45 years after active service. Indeed, in October 2015 the Veteran denied experiencing tinnitus during a VA audiology consultation. Moreover, an August 2016 VA audiology report indicates he had his hearing aids adjusted and the record does not indicate the Veteran reported any issues with tinnitus. It is reasonable to assume that the Veteran would have referenced a previous history of tinnitus in this context. For these reasons, the Board does not find the Veteran's assertions as to continuity to be credible. Based on the foregoing, the Board concludes that the Veteran's bilateral hearing loss and tinnitus were not shown as chronic in-service and did not manifest to a compensable degree within the applicable presumptive period; and continuity of symptomatology is not established. As to direct service connection, the Board recognizes the Veteran was diagnosed with tinnitus and bilateral hearing loss for VA ratings purposes. See 38 C.F.R. § 3.385. Thus, the first element of service connection is established for each claim. See Shedden, 381 F.3d at 1167. However, the evidence of record does not contain the second and third required elements for each claim; specifically, in-service events and medical nexuses connecting his disabilities to his active duty service. As to tinnitus, the Board acknowledges the Veteran's allegations of in-service complaints of tinnitus; however, his STRs and his separation examination do not indicate he voiced complaints related to, or received treatment related to tinnitus. Moreover, the January 2021 VA opinion, taking into account his lay statements, still determined it was less likely than not his tinnitus was the result of in-service hazardous noise exposure. Indeed, the evidence of record does not contain any competent or credible medical opinion or evidence indicating his tinnitus is the result of active service. As to hearing loss, the Board concedes he was likely exposed to hazardous noise in-service; however, exposure to hazardous noise is not the same as acoustic trauma. In this case, the January 2021 VA examiner determined that although "the relationship of noise exposure, cochlear auditory damage and hearing loss is well-established, cochlear auditory damage and hearing loss are not conceded based on noise alone." Moreover, the Board notes that although the January 2021 VA examiner did not explicitly recite the Veteran's lay statements in his rationale, the bulk of the Veteran's lay statements pertained to tinnitus. Furthermore, the Veteran's one-time complaint of in-service short-term hearing loss indicates an acute and transitory incident that comports with the VA opinion. While the Board also acknowledges the October 2017 Dr. G.P note indicating the Veteran's hearing loss was the result of his active service, Dr. G.P. did not provide any supporting evidence or reasoning to support this opinion and thus it provides little probative value. Accordingly, although the Veteran experienced in-service hazardous noise exposure, the Board finds it was not severe enough to cause acoustic trauma that would qualify as an in-service event for VA ratings purposes. Lastly, other than the unsupported opinion, the evidence of record is devoid of any other competent or credible medical evidence or opinion that contradicts the January 2021 VA examiner's opinion that he sustained in-service hazardous noise exposure severe enough to cause acoustic trauma that would qualify as an in-service event. As to a medical nexus, the Board acknowledges the January 2021 VA medical opinion relied on a 2005 IOM report in supporting the conclusions that the Veteran's tinnitus and bilateral hearing loss were not incurred in or the result of active duty service. In McCray v. Wilkie, 31 Vet. App. 243, 249 (2019), CAVC determined that when an opinion relies on the 2005 IOM report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus, the Board must assess the underlying medical text evidence when it may affect the probative value and adequacy of the medical opinion. The IOM report (as cited by the VA examiner) states as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. Id. Pursuant to McCray, if the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if an issue is raised by the veteran or reasonably raised by the record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not. In this case however, the January 2021 VA examiner only partially relied on the findings of the IOM report and discussed other factors that made it less likely than not his hearing loss and tinnitus were the result of active service. For instance, the examiner noted the Veteran's STRs do not report any issues related to hearing loss or tinnitus and do not reflect a noted shift in his audiological thresholds. Additionally, the examiner cited that the Veteran himself denied experiencing hearing loss and tinnitus in the evidence of record. Indeed, the evidence of record is devoid of any complaints to a physician or treatment related to hearing loss or tinnitus until at least 2007; 45 years after active duty service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). While there are contradictory aspects to the IOM's report, CAVC in McCray referenced "a medical text's qualifying or contradictory aspects" as one factor on a non-exhaustive list that is relevant to the Board's evaluation of the probative value and adequacy of a medical opinion. See Id. at 257. The simple use of the IOM report does not render the VA medical opinion inadequate under McCray. Here, the January 2021 VA examiner did not entirely rely on the report in forming the opinions but, instead, considered all relevant facts and general service connection principals in rendering the medical opinions. As such, the Board finds the January 2021 VA medical opinions are adequate and the most probative evidence of record regarding the likely etiology of the Veteran's tinnitus and bilateral hearing loss. Moreover, the evidence of record is devoid of any credible medical opinion opposing the January 2021 VA examiner's opinion that a medical nexus does not exist for either disability. Indeed, the only evidence suggesting a nexus between the Veteran's disabilities and his active duty service are the Veteran's lay statements. Lay evidence may be competent to establish medical etiology or nexus (Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)), but VA can give lay evidence whatever weight to which it concludes the evidence is entitled. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this case, although the Veteran may have believed his tinnitus and bilateral hearing loss were related to active duty service and he was competent to report such symptomatology, the evidence of record does not contain any indication he had any medical training rendering his opinion as credible to make such determinations, which are medical in nature. See Jandreau, 492 F.3d at 1372. Such opinions require specialized training and knowledge and are matters which are not capable of lay observation. As such, the Board finds the Veteran's contentions are of little probative value and the VA examiner's opinion being supported by the evidence of record, medical rationale, and sound service connection principles is thus of greater probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In conclusion, the preponderance of the evidence is against finding the Veteran's tinnitus and bilateral hearing loss are related to active duty service. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran's claims of entitlement to service connection for tinnitus and bilateral hearing loss are denied. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.