Citation Nr: 21031704
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 14-07 113A
DATE: May 24, 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 Veteran's current bilateral hearing loss did not have onset in active service, did not manifest within one year of separation from active service and is not otherwise related to active service.

2. The Veteran's tinnitus did not have onset in active service, did not manifest within one year of separation from active service and is not otherwise related to the active service.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

2. 3. The criteria for service connection for tinnitus have not been 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 in the U.S. Air Force from November 1961 to January 1969, with prior service in the U.S. Army National Guard from January 1961 to November 1961.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in February 2018, when the Veteran's claims for entitlement to service connection for a bilateral hearing loss disability and tinnitus were denied.

The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated August 2019, the Court vacated the Board's February 2018 decision and remanded the matter to the Board for compliance with the instructions included in the August 2019 Joint Motion for Remand (JMR) by the parties.

In February and October 2020 and the Board remanded the case so that the Veteran for additional development. 

Service Connection

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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for certain chronic diseases, including an organic disease of the nervous system like sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a).

Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition to the above criteria, service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall be established when hearing status meets certain pure tone and speech recognition criteria. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (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, 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. § 3.385.

Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. If a condition is noted on an entrance examination report, the presumption of soundness never attaches - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person 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 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id. see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

1. Entitlement to service connection for bilateral hearing loss is denied.

The Veteran claims to have hearing loss due to excessive noise exposure during military service. 

The Veteran's service treatment records (STRs), dated from January 1965 to January 1969, are negative for complaints or findings of hearing loss. At his January1965 examination for discharge/reenlistment, ears were normal. Audiometric results showed decibel thresholds at all frequencies from 500 to 4000 Hertz to be either -5 or -10 bilaterally. At his January1969 examination at separation in 1969, ears were normal. Audiometric results showed decibel thresholds at all frequencies from 500 to 4000 Hertz to be 0 bilaterally. The Veteran reported no current or past ear trouble or hearing loss.  

In his VA form 21-526, claim for benefits filed in March 2012, the Veteran reported that he suffered hearing loss in military service and "still" suffers from them today. 

Workplace audiological reports from the Veteran's service with the NSA were also added to the file. A January 2021 VA examiner referred to these documents and a June 1964 scale is legible, but the tracings are very faint, so the results are transcribed to the best of her ability. She reported the thresholds as: right- 15, 15, 15, 10, 0, 0dB HL, left- 30, 25, 20, 15, 15, ?dB HL, 500-6000Hz. She referred to a May 1978 audiogram and noted the date is very faint. The tracings are clear, but the scale is illegible, so the results are transcribed to the best of her ability. She reported the thresholds as: right- 15, 15, 15, 5, 5, 5, 0dB HL, left- 25, 25, 15, 10, 15, 20, 10dB HL, 500-8000Hz. She referred to a May 1979 audiogram in the tracings are clear, but the scale is illegible, so the results are transcribed to the best of her ability. She reported the thresholds as: right- 10, 10, 5, 5, 0, 5, 0dB HL, left- 20, 25, 15, 5, 15, 15, 5dB HL, 500-8000Hz. There were 2 other Bekesy tracings in the file, but neither has a legible date. One has no legible tracing, and the other is legible, but, again, has no legible date. She reported the thresholds as: right- 10, 10, 0, 0, -5, 0, -5dB HL, and left- 25, 15, 5, 5, 5, 15, 0dB HL, 500-8000Hz; The examiner noted that several of these Bekesy tracings appear to be dated in the 1970's, and they likely were done by the NSA where it was reported that worked for 25 years following his Air Force service by Dr. Helen Waters in August 2012. There is a sheet in the file just before the Bekesy tracings referencing Tracor Instruments audiometers that contains the words, "Voice Language Analyst NSA". As such, the examiner concluded that these Bekesy Tracings were done by the NSA in the 1970's.

In an August 2012 private audiological evaluation, the Veteran reported ear infection as an adult, tinnitus (swamp like noise) and hearing loss for about 50 years. He stated he was employed as a Russian voice transcriptionist with the Air Force for 8 years and 25 years with the National Security Agency (NSA). He also reported noise exposure from firearms during basic training, drag racing, lawn mowing, and the use of small power tools. He does not believe that ear protection was offered to him during basic training. He stated he was interested in pursuing his hearing loss and tinnitus through the VA hospital. After an audio evaluation, the diagnosis was asymmetric sensorineural hearing loss which is greater on the left. 

In a January 2021 VA opinion, the examiner found it is less likely than not that hearing loss manifested within one year of discharge. The examiner noted that Bekesy hearing tests from the 1970's appear in the Veteran's records. Several of these tests have no dates and all are difficult to read. However, the examiner could confirm Bekesy tests dated June 1974, May 1978, and May 1979. The test of June 1974 showed normal hearing from 500-6000Hz in his right ear and a mild hearing loss of unknown type at 500Hz and normal hearing from 1000-6000Hz in the left ear. The tests from May 1978 and May 1979 were both normal from 500-8000Hz. The undated tests were also within normal limits from 500-8000Hz. The 30dB threshold at 500Hz seen in June 1974 is not considered significant because hearing was normal at 500Hz on the subsequent tests from May 1978 and May 1979 and because low frequency hearing loss is not indicative of noise-induced hearing loss. A Clinician's Guide to Noise-induced Hearing Loss states that "Noise-induced hearing loss (NIHL) is a hearing loss that typically occurs gradually over time due to prolonged exposure to excessive noise levels greater than 85 decibels (dBA). Noise exposure affects both ears and usually causes a hearing loss at 3000, 4000 or 6000 Hz. It does not affect the low frequencies." (Mar 10, 2017 https://www.wcb.ab.ca/assets/pdfs/providers/HFS_hearing_loss.pdf) But rather, low frequency hearing loss suggests middle ear pathology. The Veteran's records demonstrate a history of a mixed hearing loss in his left ear which Dr. S. stated in April 2017 was "suggestive of a possible underlying otosclerosis." Dr. S. also diagnosed eustachian tube dysfunction. Thus, there is no data to suggest that hearing loss manifested within one year of discharge from service in January 1969.

The Board has first considered whether service connection is warranted on a presumptive basis. Significantly, the first evidence of sensorineural hearing loss was not shown in service or within one year of service separation. In fact, the first objective clinical documentation of left ear hearing loss is dated in August 2012, approximately 43 years after service separation. The Board must note the lapse of many years between the Veteran's separation from service and the first diagnosis of sensorineural hearing loss. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). As such, service connection for hearing loss cannot be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309.

The Board has also considered whether service connection is warranted on a direct basis. Significantly, the Board finds hearing loss was not shown in service and the evidence does not show the Veteran's hearing loss is directly related to service.  

A June 2013 VA examiner stated that the current hearing loss did not exist prior to service and was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The audiologist noted that audiometric testing performed at the time of induction-re-enlistment in 1965 and again at discharge in 1969 revealed normal hearing bilaterally. A comparison between those test results indicates that this Veteran experienced no significant changes in hearing for either ear during active duty service. The examiner stated that, furthermore, there is no known scientific basis for the delayed onset of noise induced hearing loss, citing to the Institute of Medicine study, Noise and Military Service: Implications for Hearing Loss and Tinnitus, 2005.  

The Veteran's written statement in March 2014 includes his response that during the time of his exposure to acoustic trauma, he did not realize that his hearing was being compromised. Thus, he just turned the volume up and continued with the mission. He explained that this did not result in visits to medical facilities to verify and document his hearing loss until a few years after he completed his second tour and left the Air Force.

In August 2019, the parties to the JMR requested that the Board determine whether this examination was adequate "in light of the fact that the examiner based his opinion on there being no in-service event." The Board found that an addendum opinion was required in February 2020.

In a May 2020 VA opinion, the examiner found the Veteran's hearing loss was less likely than not incurred in or caused by the Veteran's claimed in-service noise exposure. The examiner noted that hearing on entry and separation were within normal limits with significant improvement in left hearing over service period.  Noise exposure from long term high frequency radio noise using headphones was conceded by Veteran Administration in February 2018. Despite conceded noise exposure, the Veteran's hearing improved and remained well within normal limits during service. Hearing and noise exposure from January 1969 separation and December 2000 are unknown. The Institute of Medicine (2006) stated there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was "unlikely". In other words, inner ear hearing should not change after noise exposure is removed. Since hearing was within normal limits on separation, the examiner opined that hearing loss is less likely than not associated with military event even with noise concession.

In a July 2020 addendum, the examiner noted that the Veteran's DD-214 states he was an interpreter which has a low probability of hazardous noise exposure. Review of the Veteran's Claim file revealed normal hearing bilaterally upon entrance and separation from military service to calibrated audiometric testing. Additionally, there was no significant in-service threshold shift noted at any frequency (500-4000Hz). STRs were silent for hearing loss complaint. The Institute of Medicine Study (2005) "Noise and Military Service: Implications for Hearing Loss and Tinnitus" states: "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." Therefore, based on the objective evidence (audiograms), the examiner found there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the his military service, including noise exposure.

The claim was again remanded in October 2020 as the May 2020 VA examiner incorrectly indicated the Veteran was an interpreter in the service, and not an intercept operator. 

In a January 2021 VA opinion, the VA examiner reviewed the claims file and determined it is less likely than not that the Veteran's hearing loss was caused by an in-service injury or disease, including in-service acoustic trauma as reported by the Veteran. Although the Veteran stated that he had to turn up the volume while using radios in the course of his Air Force duties, there is no objective evidence available to support that contention. The reenlistment medical report and the separation medical report dated January 1965 and January 1969, respectively, contain no mention of hearing loss. On both forms, the Veteran marked "NO" for "Ear, Nose or Throat Trouble" and "Hearing Loss." There were no complaints of hearing loss or problems with his ears in general documented in his STRs. Although the Veteran reports significant hazardous noise exposure from weapons in 1961 and radio noise throughout the 1960's, hearing tests dated November 1961, January 1965, and January 1969 were well within normal limits with no evidence of threshold shift. Thus, there is no data to suggest any hearing loss at the time of his separation on January 1969. It is recognized that the audiogram is an imperfect measurement. Nevertheless, it is accepted as the objective basis for determining noise injuries. Noise and Military Service: Implications for Hearing Loss and Tinnitus (2006) states "There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." (IOM,47) The report further notes that "The committee's 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." (IOM,203) Bekesy hearing tests from the 1970's also appear in the Veteran's records. The Veteran's records demonstrate a history of a mixed hearing loss in his left ear which Dr. S. stated in April 2017 was "suggestive of a possible underlying otosclerosis." Dr. S. also diagnosed eustachian tube dysfunction. 

The examiner noted that the remand letter mentioned that the July 2020 VA audiologist stated in his report that the Veteran's MOS was Interpreter. The Veteran's representative correctly stated that the Veteran was not an interpreter, but rather an intercept operator. However, although the Veteran's DD-214's indicates an MOS of R20351 Voice Intercept Processing Specialist, the related civilian occupation and DOT number are listed as 0-68.02 Translator and 0-61.38 Interpreter. Thus, the VA examiner's statement is understandable. 

The examiner indicated that the Veteran's representative cited a study by Dr. Sharon G. Kujawa and Dr. M. Charles Liberman. Sharon G. Kujawa, M. C. Liberman, "Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss," 29(45) J. Neuroscience 14077, 14078-79 (2009) that addressed cochlear neuron degeneration. The study showed that temporary threshold shift, i.e. temporary hearing loss, could cause nerve damage in the cochlea that would remain even if hearing later recovered to normal levels. This remaining cochlear nerve damage could manifest itself later in life as hearing loss. In the case of the claimant, there is no objective evidence to suggest temporary threshold shift during military service. As stated above, all in-service hearing tests were well within normal limits with no threshold shift and his service records were silent regarding hearing loss. There is no evidence of continuity of care for hearing loss in the 43 years between his separation on January 1969 and seeing audiologist Dr. W. in August 2012. At age 80, presbycusis is a significant factor contributing to his hearing loss. In October 2012, Dr. W. stated, "I saw this patient for his hearing. There was an asymmetry in his hearing and a follow-up MRI was ordered. According to the radiologist, the MRI was normal. No evidence of any retro cochlear cause such as acoustic neuroma. The radiologist noticed some age-appropriate changes. As presbycusis is hearing loss caused by aging, the age-appropriate changes mentioned by Dr. W. tend to confirm the presence of presbycusis. 

Given all of these factors, including normal hearing at separation with no evidence of threshold shift during military service, no mention of hearing loss in his service records, normal hearing in May 1979, 10 years after his separation, evidence from the IOM contraindicating delayed onset hearing loss, evidence of middle ear pathology as mentioned by Dr. S. in April 2017, and evidence of presbycusis mentioned by Dr. W. in October 2012, the examiner opined it is less likely than not that the Veteran's hearing loss is a result of military service.

In this case, the Board finds the January 2021 VA examiner's opinions are entitled to significant probative weight because they are clear and well supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record.

The Board notes that the Veteran's representative submitted an article about cochlear nerve degeneration after 'temporary' noise-induced hearing loss. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 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). However, treatise evidence must not simply provide speculative generic statements not relevant to the [claimant]'s claim. Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, standing alone, must discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463(1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)).

In this case, the article submitted by the Veteran's representative provided only general information as to a kind of late onset hearing loss. It is not accompanied by any corresponding clinical evidence specific to the Veteran. Furthermore, the January 2021 VA examiner specifically found that the findings of the article do not apply to the Veteran and provided a rationale as to the opinion. As such, the Board finds this information to not be relevant as to the matter for consideration and, therefore, is not probative to this case. Wallin, supra; Sacks, supra.

The Board acknowledges the Veteran's assertions that he was exposed to loud noises in service, which he claims caused his hearing loss. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); also see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, relating noise exposure in service to a current disability, especially with a lengthy gap in the medical record, requires opinion evidence from experts with medical training, and is not subject to lay assessment. The Board finds the opinion of the VA examiner to be more persuasive than the Veteran's lay assertions.

Absent competent evidence establishing a link between current hearing loss and service, the claim for service connection for hearing loss cannot be granted. Again, there is more than a 43-year gap between the Veteran's discharge from service and the first objective evidence of a hearing loss disability. There is no competent evidence linking the remote onset of the Veteran's hearing loss to an in-service event. Rather, the only competent opinions addressing the origin of the disability are negative opinions. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of service connection for left ear hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert v. Derwinski, supra.

2. Entitlement to service connection for tinnitus is denied.

The Veteran essentially contends that his tinnitus is related to his period of active service. 

The Veteran's STRs, dated from January 1965 to January 1969, are negative for complaints or findings of tinnitus. At his January 1965 examination for discharge/reenlistment, ears were normal. At his January 1969 examination at separation, ears were normal. In an associated medical history reports, the Veteran denied running ears and ear, nose, or throat trouble. 

In his VA form 21-526, claim for benefits filed in March 2012, the Veteran reported that he suffered tinnitus in military service and "still" suffers from it today. 

In an August 2012 private audiological evaluation, the Veteran reported tinnitus (swamp like noise) for about 50 years. He stated he weas employed as a Russian voice transcriptionist with the Air Force for 8 years and 25 years with the National Security Agency (NSA). He also reported noise exposure to firearms during basic training, drag racing, lawn mowing, and the use of small power tools. He does not believe that ear protection was offered to him during basic training. He stated he was interested in pursuing his tinnitus through the VA hospital. 

The Board has first considered whether service connection is warranted on a presumptive basis. Significantly, the first evidence of tinnitus was not shown in service or within one year of service separation. In fact, the first objective clinical documentation of tinnitus is dated in August 2012, approximately 43 years after service separation. The Board must note the lapse of many years between the Veteran's separation from service and the first diagnosis of tinnitus. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, supra. As such, service connection for tinnitus cannot be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309.

The Board has also considered whether service connection is warranted on a direct basis. Significantly, the Board finds tinnitus was not shown in service and the evidence does not show the Veteran's tinnitus is directly related to service.  

In a June 2013 VA examination report, the examiner noted that the Veteran reported that his tinnitus started in the mid-1970's and was not associated with any specific event. The examiner opined that the tinnitus was less likely than not (less than 50% probability) caused by or result of military noise exposure. He provided the following rationale: 

A diagnosis of noise-induced tinnitus requires a diagnosis of noise-induced hearing loss or an association between tinnitus onset and some noise-related event (Tinnitus Handbook, Tyler 2000). The Veteran experienced no hearing loss during military service, and he does not associate tinnitus onset with any specific event. There is, therefore, no basis for nexus between his current tinnitus and military service. 

In a May 2020 VA examination report, the examiner determined the Veteran's tinnitus is less likely than not incurred in or caused by the specific in-service illness, event or injury to include acoustic trauma during service. He noted that the records are not supportive of any ear damage associated with tinnitus. Tinnitus also was not reported during service. Tinnitus is first documented on March 2013 with stated onset in mid-1970's. Tinnitus is known to occur at time of insult thus tinnitus occurring several years after separation is not supportive of any military associated cause for tinnitus.

In a July 2020 addendum, the examiner noted the Veteran's DD-214 states he was an interpreter which has a low probability of hazardous noise exposure. In the absence of objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, one would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. IOM never stated that tinnitus could result from undiagnosed noise injuries. In most cases, tinnitus is accompanied by measurable hearing loss. We recognize that the audiogram is an imperfect measurement. Nevertheless, it is accepted as the objective basis for determining noise injuries.

In a January 2021 VA opinion, the examiner examined the Veteran's claims file and opined it is less likely than not that the claimant's tinnitus was caused by an in-service injury or disease, including in-service acoustic trauma as reported by the Veteran or military noise exposure. Although the Veteran reported significant hazardous noise exposure from weapons in 1961 and radio noise throughout the 1960's, there is no evidence that tinnitus began during military service, nor within one year of his discharge. During previous examinations, he reported that tinnitus had begun in the "mid 1970's" and the "1970's." The reenlistment medical report and the separation medical report dated January 1965 and January 1969, respectively, contain no mention of tinnitus. On both forms, the claimant marked "NO" for "Ear, Nose or Throat Trouble" & "Hearing Loss." The remainder of his STRs fail to contain any reference to tinnitus or his ears in general. There are several reports regarding tinnitus from civilian providers beginning in 2012. Only nebulous terms are used to describe the date of tinnitus onset. In October 2012, Dr. W. described a "longstanding history of tinnitus," and Dr. S. mentioned a history of tinnitus for "several years." As the Veteran reported tinnitus onset in the mid 1970's or the 1970's, it is logical to conclude that the claimant's tinnitus is related to service with the NSA rather than active duty or National Guard service. 

The examiner indicated that tinnitus due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or soon following the incident. There is simply no evidence of tinnitus during National Guard or Air Force service, rather, the Veteran's own reports pinpoint tinnitus onset to the mid-1970's, a number of years following his separation from military service in January 1969. The Implications for Hearing Loss and Tinnitus (2005) study states that "as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases." Hearing tests dated November 1961, January 1965, and January 1969 were well within normal limits with no evidence of threshold shift. Also, Bekesy hearing tests through May 1979 indicate normal hearing until at least that date. In most cases, tinnitus is accompanied by measurable hearing loss. Also, in March 2013, Dr. S. mentioned that tinnitus at least at that time was in the left ear only. The Veteran's records demonstrate a history of a mixed hearing loss in his left ear which Dr. S. stated in April 2017 was "suggestive of a possible underlying otosclerosis." Middle ear pathologies such as otosclerosis are known to be common causes of tinnitus. Dr. S. also diagnosed eustachian tube dysfunction, another common cause of tinnitus. Given all of these factors, the examiner determined it is less likely than not that the Veteran's tinnitus is a result of military service to include military noise exposure.

The Board finds the January 2021 VA examiner's opinions are entitled to significant probative weight because they are clear and well supported by rationale. See Nieves-Rodriguez v. Peake, supra. There is no contrary opinion of record.

The Board acknowledges the Veteran's assertions that he was exposed to loud noises in service, which he claims caused his tinnitus. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, supra; also see Buchanan v. Nicholson, supra. However, relating noise exposure in service to a current disability, especially with a lengthy gap in the medical record and a delay in a noticeable loss, requires opinion evidence from experts with medical training, and is not subject to lay assessment. The Board finds the opinion of the VA examiner to be more persuasive than the Veteran's lay assertions.

In summary, the preponderance of evidence is against a finding that the Veteran's tinnitus is related to his active service. In the absence of a link to military service by competent evidence, service connection may not be granted. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Accordingly, service connection for tinnitus is denied.

 

 

CHRISTOPHER J. O'DONNELL

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. M. Donahue Boushehri, 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.