Citation Nr: 21029400 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-05 435 DATE: May 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A hearing loss disability was not manifest in service, an organic disease of the nervous system was not manifest within one year of service, and is not otherwise related to service. 2. Tinnitus was manifest in service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred in or aggravated by service, and an organic disease of the nervous system (sensorineural hearing loss) may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to June 1972. In December 2020, he testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). The VLJ identified the issues on appeal, clarified service connection claims and the type of evidence that would support the Veteran's claims, elicited relevant testimony, identified potential evidentiary defects, and held the record open for an additional 60 days to allow for submission of additional evidence. The actions complied with duties owed during a Board hearing pursuant to 38 C.F.R. § 3.103. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. 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" the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385 then operates to establish when a hearing loss disability can be service connected. Id. at 159. For certain chronic disease, including organic disease of the nervous system such as sensorineural hearing loss and tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Service connection for a bilateral hearing loss disability. 2. Service connection for tinnitus. The Veteran seeks service connection for bilateral hearing loss disability and tinnitus. He contends both are due to noise exposure and pressure changes while he served aboard submarines during service. After reviewing the evidence of record, the Board concludes that service connection for a bilateral hearing loss disability is not warranted. However, service connection for tinnitus is warranted. Service treatment records consist solely of records relating to gastrointestinal disorders and the resulting medical board proceedings which led to a medical discharge. No entrance examination or separation examination is available. The service records contain no audiological findings or audiograms. A VA hospital summary from 1972 to 1973 reflects that head, eyes, ears, nose and throat were normal and there were no positive central nervous system findings. Post-service treatment records dated December 2001 show the Veteran was given a physical examination, that he was 48 years old, and that his hearing was grossly intact. A December 2012 treatment record shows the Veteran reported bilateral hearing loss, difficulty hearing over background noise, and that he wore hearing aids in both ears. The Veteran was provided a VA hearing loss and tinnitus examination in May 2013. Upon audiological examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 25 35 75 70 60 45 40 LEFT 30 35 75 75 75 65 50 The speech discrimination score using the Maryland CNC word test was 92 percent in the right ear and 88 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss and determined that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to speculation. She explained that, although the Veteran reported exposure to excessive engine noise during his active duty, hearing test results were not located in the claims file. Given the absence of this information and history of vancomycin administration, which is possibly ototoxic, the examiner could not resolve this issue without resorting to mere speculation. Regarding tinnitus, the Veteran stated his tinnitus had been present for many years. The examiner determined that the tinnitus was at least as likely as not a symptom associated with the hearing loss. In an August 2013 addendum opinion for tinnitus, the examiner the examiner determined tinnitus is less likely than not related to military noise exposure and more likely than not related to chronic hearing loss. She explained that there was no noted association with military noise exposure or records of tinnitus in the service treatment records, and that tinnitus is commonly associated with chronic hearing loss. In the August 2014 Notice of Disagreement, the Veteran stated he believed his hearing loss and ringing in his ears was a direct result of being in engine rooms of a diesel submarine during service and that he was exposed to much higher than normal air pressures while submerged. He reported that his hearing loss became evident around 2000 and has continued to get worse. In the January 2016 VA Form 9 appeal to the Board, the Veteran reported that his hearing loss began in 2006. The Veteran testified at a Board hearing in February 2021. He reported that he was a storekeeper onboard a diesel submarine during service and that his duties regularly placed him in the engine rooms. He reported that the noise in the engine rooms was very high and painful and that his ears would ring and be muffled after leaving the engine rooms. Regarding onset of his hearing loss, he testified that he had first noticed hearing issues in his thirties, that he had a hearing aid for his left ear by the time he turned forty, and that he noticed ringing in his ears around the time he got his hearing aids. He denied post-service noise exposure at work or with hobbies. VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C. § 1154 (a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although 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). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Here, the Veteran is competent to report that he was exposed to excessive noise during service. At the February 2021 Board hearing, the undersigned VLJ accepted that the Veteran had prolonged noise exposure during his service. He is also competent to report lay observable symptoms such as hearing loss and tinnitus, that he experienced ear pain and muffled hearing following his exposure to noise, and that it would take time for his hearing to come back following such exposure. In regard to tinnitus during service, we find the testimony credible and service connection is granted. However, the Veteran's statements regarding the onset of his hearing loss have been against the claim. In the Notice of Disagreement, he reported that he first noticed hearing loss in 2000. A December 2001 private physical examination report shows his hearing was grossly intact when he was 48 years old. In the VA Form 9, he reported hearing loss began in 2006. He testified at the Board hearing that he first noticed hearing loss in his thirties. However, although the evidence regarding onset has been inconsistent, the dates the Veteran has provided have consistently been years after he separated from service. At the earliest, he first noticed hearing loss when he was in his thirties, although the December 2001 evaluation suggests his hearing was intact when he was 48. The Veteran's statements regarding onset assert that hearing loss manifest many years after his separation from service. Additionally, while the Veteran has reported reduced hearing acuity during service, his testimony at the February 2021 Board hearing indicates such hearing loss was temporary in nature and that his hearing would return to normal thereafter. Although sensorineural hearing loss is a chronic disease, the evidence is against a finding that a chronic sensorineural hearing loss disability (organic disease of the nervous system) manifested in service or within one year of separation. The Veteran's statements as to onset of his hearing loss have been inconsistent. In the Notice of Disagreement, he reported that he first noticed hearing loss in 2000. A December 2001 private physical examination report shows his hearing was grossly intact when he was 48 years old. In the VA Form 9, he reported hearing loss began in 2006. He testified at the Board hearing that he first noticed hearing loss in his thirties. While he testified that he began wearing hearing aids when he was 40 years old, private treatment records suggest his hearing was intact in December 2001 when he was 48 years old. The first indication in the available medical records that the Veteran had hearing aids is from December 2012. Despite these inconsistencies, the Veteran has regularly reported that his current hearing loss began well after he separated from service. We note that the Veteran separated from service in June 1972, when he was 19 years old. At the earliest, the Veteran has reported that he first noticed his hearing loss in his thirties. At the latest, the medical evidence suggests an onset of both hearing loss sometime between December 2001, when his hearing was intact and no hearing aids were present, and December 2012, when he had hearing loss and wore hearing aids. Regardless, neither the lay statements nor the medical evidence suggests that sensorineural hearing loss manifested within a year after separating from service. The most credible, probative evidence shows the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity during service or within one year of separation from service. 38 C.F.R. § 3.303 (b). There is little credible evidence of a hearing loss disability during service or within one year of separation. The Veteran's representative cited "Submarine Medicine Practice," a book published by the Bureau of Medicine and Surgery of the U.S. Navy, which states that engine noises in diesel submarines "are believed to be immeasurably loud; that is, above 140 decibels" and that "hearing loss may become permanent with increased intensities and durations of exposure." Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509 (1998); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). Medical articles can provide important support when combined with an opinion of a medical professional. Sacks v. West, 11 Vet. App. 317, 317 (1998). Here, the Board finds the cited treatise to be of some value. The cited text does support a link between noise exposure in submarine engine rooms, and the Board has conceded that the Veteran was exposed to excessive noise during his service. However, treatise evidence must "not simply provide speculative generic statements not relevant to the veteran's claim." Wallin, 11 Vet. App. at 514. While potentially relevant to the Veteran's claim, the article provides general information that is speculative insofar as a relationship between the Veteran's current hearing loss disability and his in-service noise exposure. Specifically, the book states that hearing loss "may" become permanent. The relevant passages also state that "it is believed that the increased incidence of hearing loss among engine room personnel following years of chronic exposure to noise may have a traumatic basis." Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See, e.g., Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). Furthermore, this treatise information is not accompanied by corresponding clinical evidence or a competent medical nexus opinion specific to the Veteran. We again note that the available lay and medical evidence suggests hearing loss disability began many years after he separated from service. For a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Id. at 304. Regarding hearing loss, the only opinion of record is the May 2013 opinion that the etiology of the Veteran's bilateral hearing loss disability could not be determined without resorting to speculation because the service treatment records contained no hearing test results and the Veteran had been administered ototoxic medication following service. The Veteran's representative has argued that the May 2013 nexus opinion regarding hearing loss is inadequate because it does not consider the Veteran's initial in-service symptoms and did not provide an etiology for the hearing loss. The Board recognizes that the May 2013 nexus opinion is not perfect. The opinion does not directly address the Veteran's later testimony as to his in-service symptoms. However, the examiner did consider the Veteran's in-service exposure to noise when rendering the opinion. The Veteran has been inconsistent when reporting the onset of his current hearing loss disabilities but has consistently reported that it many years after he separated from service. Treatment records available to the May 2013 examiner also indicated his hearing was grossly intact in December 2001 and that hospital records immediately following service establish that the ears were essentially negative for pathology. Notably, no competent opinion attributing the Veteran's hearing loss disability to his in-service noise exposure has been presented, despite the Veteran being provided ample opportunity to do so. Although the May 2013 examiner concluded she could not determine the etiology of the Veteran's hearing loss without speculation, she did consider the Veteran's exposure to noise and relevant post-service medical records in rendering the opinion. As outlined above, the remaining competent and credible evidence preponderates against the claims. There is little to no competent evidence attributing hearing loss disability to his service. The remaining evidence, including the Veteran's lay statements, suggests hearing loss had an onset long after the Veteran separated from service. Even if we accept without question his report that he noticed a decrease in acuity while around machinery, his own testimony establishes a lack of continuity of symptoms. In sum, there is little competent or credible evidence relating the remote hearing loss disability to service. The preponderance of the evidence is against the claim for hearing loss disability. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.