Citation Nr: 21029969 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-16 125 DATE: May 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss is causally or etiologically related to service. 2. The preponderance of the evidence is against finding that the Veteran's tinnitus is causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 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 December 1958 to March 1962. These matters come before the Board of Veterans' Appeal (Board) following April 2019 and July 2020 Board decisions. These matters were originally on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2018, the Veteran testified before the undersigned Veterans Law Judge. A copy of that transcript has been associated with the claims file. Service Connection Generally, to establish service connection 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, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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, 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. 38 C.F.R. § 3.3 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 Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that his bilateral sensorineural hearing loss and tinnitus are a result of his service. The Veteran had an in-service audiological evaluation in January 1962 at which time auditory thresholds were recorded. It is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. For service audiological evaluations conducted prior to January 1, 1967, VA protocol is to assume the ASA standard was used. For service audiological evaluations conducted between January 1, 1967 and December 31, 1970, VA protocol is to consider the data under both ASA and ISO-ANSI standards, whichever is more beneficial to the Veteran. For service audiological evaluations conducted after December 31, 1970, VA protocol is to presume the ISO-ANSI standard was used. As such, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 1 Service treatment records show that on enlistment examination in December 1958, the Report of Medical Examination revealed the Veteran's ears were normal. During service an April 1959 Report of Medical Examination revealed hearing acuity 15/15 bilaterally on whispered and spoken voice testing. No relevant complaints were noted on the April 1959 Report of Medical History. The Veteran complained of swollen or painful joints, mumps, cramps in the legs, and weight change, but no complaints referable to hearing difficulties. During service, treatment records show complaints of and treatment for "immaturity reaction," back strain, headaches, frequent itching, left wrist pain, and upper respiratory infection, and a request for tattoo removal, but no complaints referable to hearing difficulties. The January 1962 separation audiometry report reads, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 5 (15) - 0 (5) LEFT 0 (15) 0 (10) 0 (10) - 0 (5) At 8000 Hertz, the decibels were 0 (10) bilaterally. The January 1962 Report of Medical History shows that in response to the question of whether the Veteran ever had or had now "ear, nose or throat trouble," he answered in the negative. In an October 2013 Statement in Support of Claim, and other related statements, the Veteran contended that he has bilateral hearing loss due to firing weapons and being exposed to loud noises, such as demolitions and bridge building, while in service. In November 2014, the Veteran underwent a VA audiological examination. It was noted that the Veteran reported military noise exposure from close proximity to demolition and engineering noise and that he had no noise exposure after service. The Veteran was diagnosed with bilateral sensorineural hearing loss. The audiometry report reads, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 55 70 LEFT 25 20 45 50 55 The average decibel loss was 54 in the right ear and 43 in the left ear. Speech discrimination scores were 96 percent, bilaterally. After a review of the Veteran's claims file and an in-person examination, the audiologist rendered the clinical assessment that it is less likely as not that the Veteran's bilateral hearing loss and tinnitus were incurred in or caused by his service. The audiologist noted that there would have been some evidence of hearing loss in the Veteran's last audiogram before discharge, and then opined that the Veteran's current hearing loss seemed to be more age-related than noise induced. It was the examiner's opinion that the Veteran had age-related high frequency hearing loss. Regarding the Veteran's tinnitus, the November 2014 audiologist endorsed that the Veteran had not reported experiencing tinnitus at that time. In December 2014, the Veteran filed a notice of disagreement. He specifically stated that the examiner did not listen to him regarding his tinnitus claim, and that based on his unit assignment he would have been exposed to more noise. In March 2016, the Veteran underwent a second VA audiological examination. The Veteran reported the onset of hearing loss in the 1960s and stated that his hearing had significantly decreased in the past ten years. He reported military hazardous noise exposure from his assignment with civil engineers including demolition, explosions, and weapons/grenade training. He reported limited post-military noise exposure while working as a fire/arson inspector. He also reported post-military recreational and occupational use of firearms with hearing protection devices. The Veteran was again diagnosed with bilateral sensorineural hearing loss. The audiometry report reads, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 45 45 55 55 65 LEFT 15 25 35 50 60 The average decibel loss was 55 in the right ear and 43 in the left ear. Speech discrimination scores were 80 percent in the right ear and 94 percent in the left ear. The audiologist reviewed the Veteran's service treatment records and noted that the records showed inadequate audiometric testing at the enlistment exam in December 1958 and on physical examination in April 1959. The examiner explained that whisper voice testing was not a valid measure of hearing sensitivity but noted the separation audiogram showed normal hearing bilaterally. The examiner maintained that the Veteran's hearing was normal at separation from military and that once military noise exposure is removed hearing would not be expected to get worse. The examiner specifically noted that he acknowledged the Veteran's reports of military hazardous noise exposure; however, the objective evidence of the normal separation audiogram shows no in-service manifestation of hearing loss. The examiner maintained that his medical conclusion is supported by the Institute of Medicine Report on military noise-induced hearing loss which provides that "[t]he evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure, with the length of recovery, whether partial or complete, related to the level, duration, and type of noise exposure. Most recovery to stable hearing thresholds occurs within 30 days" (Institute of Medicine). Current science indicates that the "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 loss following an earlier noise exposure is extremely unlikely" (Institute of Medicine). "The conclusion from review of the research in this area is that individuals with previous noise-induced hearing loss are neither more nor less susceptible to subsequent noise-induced hearing loss than individuals without such pre-existing hearing loss" (Institute of Medicine). Therefore, the examiner maintained that if hearing is normal upon discharge, there is no evidence of hearing damage due to military noise exposure. Any worsening of hearing from the time of discharge to current is due to noise exposure between the times of discharge to current. The examiner indicated that this literature supports this assessment, even if a significant shift in hearing is found between entrance and exit audiometric testing. In regard to tinnitus, the examiner related that the Veteran complained of intermittent bilateral tinnitus, with onset many years ago, occurring a few times per week with episodes lasting several minutes in duration. The examiner noted that the Veteran previously reported the onset after firing weapons in the military based on VBMS records, however, he did not mention this at the current exam when asked specific details of his tinnitus onset. The examiner maintained that the Veteran's tinnitus is at least as likely as not a symptom associated with the hearing loss as tinnitus is known to be a symptom associated with hearing loss. The examiner noted that the Veteran had normal hearing bilaterally at separation from military service, thus there are no objective factors for which the etiology of tinnitus could be attributed. The Veteran's service treatment records do not contain complaints, treatment, or diagnosis for this condition. The examiner maintained that the current complaint of tinnitus is not a result of or aggravation of military noise exposure since tinnitus is more likely as not found in association with hearing loss, which the Veteran did not exhibit on discharge examination. During the November 2018 hearing, the Veteran testified that he began experiencing problems with his hearing, including ringing in his ears, while in service. The Veteran stated that he regularly conducted training with combat engineers and was exposed to hazardous noise levels without ever using hearing protection. He also testified that his post-service exposure to hazardous noise levels was minimal, even while working as a police officer and while deer hunting. In January 2019, the Veteran submitted additional evidence to the Board from a private audiologist, Dr. D.C., who noted that the Veteran reported considerable noise exposure during service. Dr. D.C. maintained that it is his opinion that the Veteran's considerable noise exposure without hearing protection is most likely a significant factor in his current moderate to severe hearing loss. In July 2020, pursuant to an April 2020 Joint Motion for Remand by the United States Court of Appeals for Veterans Claims (CAVC) the Board remanded the claim for an addendum opinion. The Board directed the examiner to address the prior VA opinions' finding that the Veteran had normal hearing on separation (see January 1962 Report of Medical Examination). The examiner was asked to explain the relevance of the absence of data provided for the Veteran's hearing at 3000 Hertz and reconcile the findings of normal hearing on separation with the lack of data for his hearing at this frequency. In February 2021 the Veteran was afforded a new VA examination. The examiner opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran entered the service with a whisper test of 15/15. This test is not sensitive nor specific. However, he had a separation audiogram assessing frequencies at 250, 500, 1000, 2000, 4000, and 8000 Hertz, 3000 Hertz were not assessed. The separation audio when converted to ANSI shows no hearing loss in either ear and thresholds low enough that the absence of an enlistment audio does not affect the ability to assess a threshold shift since the thresholds remain so low at separation. The most sensitive frequencies for noise induced hearing loss are the higher frequencies. The examiner stated the fact that the Veteran had normal hearing at 8000 and 4000 trumps the lack of data at 3000 showing that acoustic trauma did not occur. This objective data indicates that hearing loss did not occur while in the service. The first audiogram showing hearing loss was not until 2005 which is 50 years after leaving the service. There are some papers suggesting a delayed onset hearing loss in animal models, but this has not been shown in humans and is not considered an accepted position. The accepted position as noted in his previous DBQs is that the farther one gets from reported noise exposure without issue the less likely that noise caused any issues. In this case, 50 years passed. As such, it becomes less likely than not that his current hearing loss is related to military service, even without assessing 3000 Hertz at separation. The examiner opined the Veteran's tinnitus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated when it comes to tinnitus, there is no specific test to confirm or refute its presence, that is why the history is the most important in determining an etiology. In his most recent DBQ he noted tinnitus for the past several years but that it first began after firing weapons. However, at the 2016 DBQ the Veteran noted it did not develop after firing weapons. The examiner further stated, as memories can be misleading, the first record is the one considered the most reliable. In this case, the 2016 DBQ noted it was present for the past several years but had not developed after weapons fire. This puts the timeline for his tinnitus years after his military service without any nexus to the service. Additionally, the examiner stated the Veteran does have hearing loss documented at least as of 2005, tinnitus is known to develop in the setting of high frequency hearing loss. With regards to his normal audiogram at separation, this provides further evidence he did not suffer acoustic trauma in the service. The most sensitive frequency tested for noise induced hearing loss is 8000 Hertz which he had tested and showed a normal threshold at separation. The fact that 3000 Hertz was not tested is irrelevant as the most sensitive frequencies for picking up noise induced hearing loss were tested. As such, it is less likely than not that his tinnitus is related to any noise or events from the service and more likely than not it is related to his hearing loss which is also not related to service. The record contains favorable and unfavorable medical opinion evidence on whether the Veteran has bilateral hearing loss and tinnitus due to in-service noise exposure. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board finds the February 2021 VA opinion which confirmed the findings of the March 2016 VA opinion to be the most probative opinion and dispositive of the nexus question presented in this case. In particular, the VA opinion and addendum opinion reflect the experts' knowledge and skill in analyzing the data. The opinions contain clear conclusions and reasoned medical explanations. The experts were familiar with the Veteran's pertinent medical history. The experts provided a thorough and detailed opinion about an area within their expertise as an audiologist. The opinions are the product of reliable principles and methods and are the result of principles and methods reliably applied to facts. In contrast, the January 2019 favorable opinion is not based on a review of the Veteran's file which contains such relevant information as evidence concerning the status of the Veteran's hearing before, during, and after service. This is significant because the January 2019 opinion does not account for the fact that audiometric testing conducted at the Veteran's separation examination revealed normal findings, and the relevance of such findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (providing that when the Board uses facts obtained from review of the claims file as a basis for crediting one expert medical opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (providing that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss."). Additionally, the January 2019 opinion provided no supporting rationale. A medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez, 22 Vet. App. at 301(citing Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.")). In the absence of a supporting rationale, the January 2019 opinion does not withstand the VA opinion to the contrary, and otherwise place the evidence on the nexus question presented in this case in relative equipoise. Consequently, the Board finds that the most probative evidence is against a nexus between the Veteran's current hearing loss and tinnitus and in-service noise exposure. The Board acknowledges the Veteran's assertions that his hearing loss and tinnitus are related to his military service. The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss and ringing in the ears. Therefore, the Veteran's lay opinion could possibly be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element); Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, determining the precise etiology of the Veteran's hearing loss is not a simple question, as there are conceivably multiple potential etiologies of the Veteran's sensorineural hearing loss. Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss and tinnitus is not sufficient to outweigh the opinion of the expert that carefully considered the specific facts of this case or otherwise place the nexus question presented in this case in equipoise. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis.") Finally, although sensorineural hearing loss is considered a "chronic disease" for presumptive service connection purposes and tinnitus is considered a "chronic disease" for presumptive service connection purposes when there is evidence of acoustic trauma (see Fountain v. McDonald, 27 Vet. App. 258 (2015)), neither bilateral hearing loss nor tinnitus was clinically shown to a compensable degree within one year following the Veteran's discharge from service. Also, there is no persuasive lay evidence that bilateral hearing loss and tinnitus manifested to a compensable degree within one year following the Veteran's discharge from service, or that hearing loss and tinnitus were noted in service and continued ever since service. As described in detail above, while the Veteran was seen for other complaints in service, there were no complaints referable to hearing difficulties. The Veteran did not report on any chronic hearing difficulties on his separation medical history report he prepared. The Board finds the evidence contemporaneous to service more probative than assertions made decades after the fact given its proximity to service. Therefore, service connection for bilateral hearing loss and tinnitus is not warranted on a presumptive or continuity of symptomatology basis. 38 C.F.R. §§ 3.307, 3.309. Accordingly, service connection is not warranted for hearing loss or tinnitus on any basis. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990.) (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.