Citation Nr: 21030048 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-14 716 DATE: May 17, 2021 ORDER Service connection for bilateral hearing loss, to include as secondary to the service-connected Meniere's Syndrome, is denied. Service connection for tinnitus, to include as secondary to the service-connected Meniere's Syndrome, is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's bilateral hearing loss is proximately due to the service-connected Meniere's Syndrome; or that the service-connected Meniere's Syndrome has aggravated his bilateral hearing loss beyond its natural progression. 2. The weight of the evidence is against a finding that the Veteran's tinnitus is proximately due to the service-connected Meniere's Syndrome; or that the service-connected Meniere's Syndrome has aggravated his tinnitus loss beyond its natural progression. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1959 to January 1961, with prior National Guard service from October 1955 to April 1956. This appeal was originally before the Board in September 2018, when the service connection claims for bilateral hearing loss and tinnitus were denied. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court issued a Joint Motion for Partial Remand (JMPR), vacating the portion of the Board's September 2018 decision, denying service connection for bilateral hearing loss and tinnitus and remanded the issues to the Board. In September 2019 and July 2020, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for additional development. Since the July 2020 remand, the Veteran was awarded service connection for Meniere's Syndrome in a January 2021 rating decision. The January 2021 Board decision found that the record did not contain a medical opinion addressing whether the Veteran's bilateral hearing loss and tinnitus were secondary to his service-connected Meniere's Syndrome. The January 2021 Board decision remanded the claims so that an examiner could provide an opinion as to whether the Veteran's bilateral hearing loss and/or tinnitus was at least as likely as not proximately due to the service-connected Meniere's Syndrome; or whether it was at least as likely as not that the service-connected Meniere's Syndrome aggravated either his bilateral hearing loss or his tinnitus beyond its natural progression. The Veteran was afforded a VA examination in January 2021. After a review of the Veteran's claims file, the examiner provided medical opinions regarding whether the Veteran's bilateral hearing loss and tinnitus were due to the service-connected Meniere's Syndrome; and whether the service-connected Meniere's Syndrome aggravated his bilateral hearing loss or tinnitus. As such, the Board finds that there has been substantial compliance with the January 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that VA has received the Veteran's representative's Informal Hearing Presentation (IHP) regarding the service connection claims for bilateral hearing loss and tinnitus on March 1, 2021. The IHP also discussed the claim for an earlier effective date for the grant of service connection for Meniere's Syndrome. However, the issue regarding Meniere's Syndrome is part of a separate AMA appeal stream. VA received the Veteran's VA Form 10182 on February 9, 2021, showing disagreement with a January 2021 AMA rating decision and the assigned effective date. The claim for an earlier effective date for the grant of service connection for Meniere's Syndrome is part of a separate appeal stream, which is outside the scope of the issues currently before the Board. The earlier effective date claim has been the subject of a separate Board decision in April 2021. Service Connection Service connection requires competent evidence showing: (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). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. 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. Where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, 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 10 Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for bilateral hearing loss, to include as secondary to the service-connected Meniere's Syndrome. Service connection for tinnitus, to include as secondary to the service-connected Meniere's Syndrome. The Veteran asserts that his bilateral hearing loss and tinnitus are due to his active duty service to include his in-service participation in boxing; and in the alternative, as secondary to his service-connected Meniere's Syndrome. The Veteran's service treatment records (STRs) show that his hearing was within normal limits at his entrance examination and at his separation examination. A VA examination for an unrelated condition in May 1961 revealed clear ears and 15/15 hearing. There were no complaints of hearing loss or tinnitus. The earliest lay and medical evidence of hearing loss is 50 years after service, in a private October 2011 audiologist report, in which an audiogram showed puretone threshold levels meeting the definition of hearing loss for VA purposes. The Veteran reported a recent ear infection and right ear tympanic membrane perforation. The report included an assessment by an Ear, Nose, and Throat (ENT) doctor that the right ear tympanic membrane perforation caused right ear hearing loss but apparently improved after medical treatment and natural healing. The Veteran reported a history of in-service noise exposure, but did not discuss the onset of any symptoms, and did not report tinnitus. The private ENT and audiologist did not address any relationship between service and hearing loss. The evidence of record does not contain any direct testimonial statements from the Veteran that his hearing loss and tinnitus symptoms began in and have been continuous since service. The only evidence that may raise the theory of continuity of symptomatology is in a March 2017 "medical data review" by Dr. MQ. The doctor stated: "Since his military service [the Veteran] complains of earaches, vertigo, tinnitus, and hearing loss secondary to high noises during military operations." In support of this statement, the physician directed, "please refer to audiology evaluation report," referencing the October 2011 report. Here, the Board affords this provider's medical statement very little probative weight as it is ambiguous and unclear. The provider noted complaints of symptoms "[s]ince" his service, but did not clarify if this meant beginning from service or at some point beginning after service. Moreover, the referenced audiologic report, which was cited as evidence of the complaints since service, does not support contain any statements regarding continuity. Rather, it shows reports of symptoms related to an apparently recent tympanic membrane perforation; it is completely silent as to tinnitus. The provider's report is otherwise unclear as to what "medical data" Dr. MQ reviewed. There is no indication that the provider interviewed the Veteran. The report refers to STRs and private treatment records that are in the claims file, but they show reports of symptoms of hearing loss or tinnitus beginning proximate in time to October 2011. Moreover, the doctor did not otherwise give an actual, express opinion as to etiology. The provider merely stated that "his medical conditions most [ic] be carefully re-evaluated in order to determine Veterans benefits." (All CAPS modified from original.) This medical statement has very limited probative weight in support of the appeal. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Veteran was afforded a VA examination in December 2017. On examination, he showed hearing loss for VA purposes. However, he did not report an onset date of his hearing loss, and could not state dates or circumstances of onset for his tinnitus. The VA examiner provided a negative nexus opinion. The examiner explained that the 1961 separation examination showed hearing within normal limits and the first clinical evidence of hearing loss was about 56 years after his separation from service. Based on the December 2017 VA examination report, a September 2018 Board decision denied the service connection claims for bilateral hearing loss and tinnitus. The Veteran appealed the denial to the Court and the Court found that the December 2017 VA examiner did not provide an adequate rationale for the negative nexus opinion that relied, in part, on a 56-year gap between the Veteran's active duty service and the first clinical evidence of hearing loss. The examiner did not explain the relevance of such a gap to the determination of whether the Veteran's hearing loss was less likely than not related to his service. The service connection claim for tinnitus was found to be inextricability intertwined. The September 2019 Board decision remanded the issues to address the concerns of the JMPR. The Veteran was then afforded a new VA examination in October 2019. After a review of the Veteran's claims file, the examiner provided a negative nexus opinion. The examiner acknowledged the Veteran's MOS as a light weapons infantryman, but once again noted the separation examination that showed hearing within normal limits and first showed clinical evidence of hearing loss many years after his separation from service. The examiner explained that there are no retroactive effects of service hazardous noise exposure, so many years after the actual exposure occurred. The examiner also explained that his tinnitus was at least as likely as not a symptom of his bilateral hearing loss because tinnitus is known to be a symptom associated with hearing loss. The July 2020 Board decision found that although the October 2019 VA examination was in substantial compliance with the September 2019 Board remand directives, additional development was necessary. The July 2020 Board decision noted that the Veteran asserted that his tinnitus resulted from head trauma he received has a boxer from 1959 to 1960. The Board found that the Veteran should be afforded a new VA examination that considered whether his hearing loss or tinnitus was related to in-service noise exposure, or head trauma received during service as a boxer. The Veteran was afforded a VA examination in November 2020. On examination, the Veteran showed hearing loss for VA purposes and he reported recurrent tinnitus. After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion regarding bilateral hearing loss. The examiner noted the Veterans 1960 separation examination, which showed hearing within normal limits and the first evidence of hearing loss in 2017, many years after his separation from service. The examiner explained that it is well known that prolonged exposure to noise of high intensity and short duration, such as military type, could cause permanent damage in the structures of the inner ear, resulting in irreversible hearing loss. Hearing deficits appear, either immediately after a noise trauma, or gradually, during the noise exposure period, and no retroactive effect is expected to be seen as hearing loss with onset so many years after exposure to military noise. Regarding tinnitus, the examiner also provided a negative nexus opinion. The examiner noted that the Veteran reported the onset of his tinnitus was ten years after separation from service. The examiner explained that the absence of in-service hearing loss and/or documentation of tinnitus in the Veteran's STRs and reported tinnitus so many years after service, made it less likely than not related to the in-service acoustic noise trauma or head trauma from boxing. Following the November 2020 VA examination, the Board issued a decision in January 2021, once again remanding the issues. The Board noted that since the prior remand, the Veteran was awarded service connection for Meniere's Syndrome. The Board found that because the record did not include a medical opinion addressing whether the Veteran's bilateral hearing loss and tinnitus were secondary to the service-connected Meniere's Syndrome, a new VA examination should be ordered to obtain a medical opinion. A medical opinion was obtained in January 2021. The examiner was asked to provide an opinion as to whether the Veteran's bilateral hearing loss and/or tinnitus was at least as likely as not, proximately due to the service-connected Meniere's Syndrome; and whether the Veteran's service-connected Meniere's Syndrome aggravated his bilateral hearing loss or tinnitus beyond its natural progression. Regarding the first question, the examiner provided a negative nexus opinion regarding both bilateral hearing loss and tinnitus. The examiner explained that the Veteran's hearing was normal at separation and the reported hearing problems started around ten years after separation from the military. Since the Meniere's Syndrome began in-service, it was less likely than not that the hearing loss was caused by Meniere's Syndrome. The examiner also pointed out that the Veteran's first report of tinnitus was ten years after separation from the military. The examiner explained that when tinnitus is the result of Meniere's Syndrome, it is usually unilateral tinnitus, in the ear affected by Meniere's Syndrome, whereas here, the Veteran has reported bilateral tinnitus. Regarding aggravation, the examiner also provided negative nexus opinions regarding both bilateral hearing loss and tinnitus. The examiner explained that the Veteran's Meniere's Syndrome began during his active duty service, but had normal hearing in both ears, at his separation examination. The examiner acknowledged the Veteran's statement at the November 2020 VA examination, that his bilateral hearing loss and tinnitus started around ten years after his separation from the military and reported that Meniere's Syndrome usually produces immediate unilateral hearing loss and tinnitus, in the ear affected, not several years after. The Board finds these VA opinions probative. The November 2020 VA examiner interviewed the Veteran, review his claims file, and took into account his lay statements, to include his statements that his hearing loss and tinnitus were potentially caused by his in-service boxing. Hence, the opinion was based on an accurate and comprehensive history. It is not clear if the VA examiner considered the change in diagnostic standards from the American Standards Association (ASA) units to the International Standards Organization-American National Standards Institute (ISO-ANSI) units. However, it does not appear that this would have changed the opinion as the hearing thresholds would not have materially changed beyond what is defined as normal. See Hensley, 5 Vet. App. at 157; see also McKinney v. McDonald, 28 Vet. App. 15, 23 (2016) (because the presence of hearing loss is based on an objective standard, the Board is easily able to identify hearing loss that is revealed on an audiometric test). The November 2020 VA examiner also relied on an absence of documented evidence in the STRs and after service. the opinion does not impermissibly rely on an absence of evidence as negative absence, however, as the examiner informed the Board of the medical significance of the absent findings during servicea hearing loss would have been documented during service if it had occurred. 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). The January 2021 VA examiner who provided a nexus opinion regarding secondary service connection is also afforded great probative weight because the examiner had reviewed all relevant information and took into consideration the Veteran's assertion that his bilateral hearing loss and tinnitus are due to and/or aggravated by his service-connected Meniere's Syndrome. The Board finds that the weight of the evidence is not in relative equipoise and finds that the criteria for service connection have not been met. The Board has also considered presumptive service connection. The Board finds that the criteria for presumptive service connection for hearing loss and tinnitus under 38 C.F.R. § 3.303 (b) based on either "chronic" symptoms in service or "continuous" symptoms since service have not been met. Nor does the evidence show that hearing loss or tinnitus manifested to a degree within one year of service separation. The earliest report of hearing loss was not until October 2011, and the earliest report of tinnitus was not until March 2017. Therefore, presumptive service connection is not warranted under the provisions of 38 C.F.R. §§ 3.307, 3.309(a). To the extent that the Veteran believes that his bilateral hearing loss and tinnitus are due to his active duty service, to include participation in boxing, or is secondary to the service-connected Meniere's Syndrome, such determinations requires medical expertise, and that determination cannot simply be made by lay observation alone. The Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the various developments in the Veteran's case during the period on appeal, numerous new medical opinions have been ordered to address his lay statements and new theories to entitlement. The Board recognizes his lay statements and assertions; however, these are complex medical questions, so his opinion is not competent on these medical questions. Accordingly, service connection for bilateral hearing loss and for tinnitus is denied. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.