Citation Nr: 21032815 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 15-19 998 DATE: May 28, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. Bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. 2. Tinnitus is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2019 and December 2020, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 4000 Hertz s 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. 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; 38 C.R.F. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). At his November 2018 Board hearing and in documents of record, the Veteran contends that he has bilateral hearing loss and tinnitus as a result of in-service noise exposure to munitions fire, to include an instance where 20 tanks fired at once, coincident with his duties as a photographer. Thus, he claims that service connection for such disorders is warranted. As an initial matter, the Board finds that the Veteran has current diagnoses of bilateral hearing loss and tinnitus, as noted at July 2013 and March 2021 VA examinations. 38 C.F.R. § 3.385. Additionally, while his service treatment records are negative for any complaints, treatment, or diagnoses referable to bilateral hearing loss and tinnitus, and audiometric testing revealed normal hearing acuity under American Standards Association (ASA) and International Standards Organization - American National Standards Institute (ISO-ANSI) standards, VA has acknowledged his in-service noise exposure as previously reported. Thus, the remaining question is whether the Veteran's currently diagnosed bilateral hearing loss and tinnitus are related to his acknowledged in-service noise exposure. In this regard, a July 2013 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were not at least as likely as not caused by or a result of an event in military service. In this regard, she noted that, while his service treatment records were not reviewed, he reported the onset of his hearing loss slowly starting sometime prior to being fitted with hearing aids in 2003 (about 10 years ago) and the Institute of Medicine Study (IOM) (2005) entitled "Noise and Military Service: Implications for Hearing Loss and Tinnitus" revealed that there was no scientific basis for delayed onset of hearing loss. Therefore, she found that hearing loss occurring after separation from military service cannot be due to events during military service. The examiner further observed that, as the Veteran described an uncertain initial onset with gradual progression over time, no locus between military service and hearing loss onset was found. As pertinent to his tinnitus, she noted that he reported the onset of such approximately four to five years previously, though he indicated that, while such may have been present previously, he was unaware of it. Further, the examiner found that tinnitus related to noise exposure is known to have immediate onset only, i.e., no delayed onset. Thus, as he indicated a delayed onset that was not associated with any military event and began many years after service, such was unrelated to his military service. In an August 2013 addendum opinion, a different VA examiner reviewed the record, to include the Veteran's service treatment records, and opined that his bilateral hearing loss and tinnitus were not caused by or a result of his military service loss. In this regard, he noted that the Veteran had normal hearing bilaterally in service without evidence of tinnitus or any significant auditory threshold shift from December 1965 to August 1968. The examiner further noted that the Veteran denied experiencing tinnitus in 2004, and cited multiple medical treatises regarding the nature of tinnitus and noise-induced hearing loss, to include a 2006 IOM study that concluded that, based on current knowledge of cochlear physiology, there was an insufficient scientific basis for the existence of delayed onset hearing loss. However, as noted in the December 2020 remand, the 2005/2006 IOM report has qualifying or contradictory statements, which neither VA examiner addressed. McCray v. Wilkie, 31 Vet. App. 243 (2019). Specifically, while the report states that "based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely" that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report's findings. Specifically, another portion of the report found that "an individual's awareness of the effects of noise on hearing may be delayed considerably after the noise exposure," which may support a theory of service connection involving the delayed onset of a veteran's perception of hearing loss. In this regard, at the November 2018 Board hearing, the Veteran testified to a period of three weeks during service when he experienced a temporary loss of hearing following significant noise exposure while taking a picture of twenty tanks firing at the same time. He also stated that his first wife complained that he was hard of hearing in the years immediately following his separation from service. Finally, the Veteran testified that his tinnitus began right after his separation from service. Thus, the Board remanded the claims in order to obtain an addendum opinion addressing the etiology of the Veteran's bilateral hearing loss and tinnitus. Thereafter, in March 2021, following an interview with the Veteran, a review of the record, and audiological evaluation, a VA examiner opined that his bilateral hearing loss and tinnitus are less likely than not caused by or the result of his military service. In this regard, he acknowledged the Veteran's report of being exposed to 20 tanks firing at the same time with consequential hearing loss for 3 weeks, but found that such was most likely a temporary threshold shift. Specifically, he noted that the Veteran's service treatment records showed no significant permanent shift in his hearing thresholds beyond test variability from entrance to separation, which he indicated was objective evidence of a lack of permanent auditory damage from in-service noise exposure. Additionally, the examiner noted that there was no report of complaints or treatment for a decrease in hearing acuity in the Veteran's service treatment records, to include at separation. Thus, he indicated that, while in-service noise exposure was acknowledged and the relationship of noise, auditory damage, and hearing loss was well-established, auditory damage and hearing loss are not acknowledged based on noise exposure alone. Rather, there must be a nexus of auditory damage to relate current hearing loss to military noise exposure rather than another etiology. The examiner further observed that, at such examination, the Veteran reported the onset of his tinnitus 15 to 20 years ago, i.e., after service, and there was no report of such disorder in the service treatment records, at separation, or in the post-service treatment records until he filed a claim. He also found that current literature did not support late onset noise-induced tinnitus. Finally, the examiner indicated that no current studies have been found to show that permanent hearing loss and tinnitus can occur following a significant passage of time. The Board affords great probative weight to the March 2021 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); 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"). The Board also acknowledges Dr. B.R.'s April 2015 statement in which he opined that the Veteran's bilateral hearing loss and tinnitus are most likely caused by or a result of his exposure to loud noises, to include tank fire, artillery fire, and missile launches, as a photographer over a prolonged period of time. However, as Dr. B.R. did not provide a rationale for his opinion, the Board affords it no probative weight. Id. The Board has also considered the Veteran's statements that his bilateral hearing loss and tinnitus are related to his in-service noise exposure; however, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship as it requires the administration and interpretation of audiological testing, and knowledge of the impact hazardous noise has on the inner workings of the ear. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Consequently, the Veteran's statements as to the etiology of his bilateral hearing loss and tinnitus are afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that bilateral hearing loss or tinnitus manifested to a compensable degree within one year of the Veteran's separation from service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to such disorders. Moreover, at the time of his August 1968 separation examination, his hearing was within normal limits bilaterally and he denied hearing loss and ringing ears. Furthermore, the Veteran has offered conflicting reports as to the onset of his bilateral hearing loss and tinnitus. In this regard, while he reported at the November 2018 Board hearing that he had hearing loss and tinnitus during service that have continued to the present time, he reported the onset of the former disorder in the early 2000's and the latter disorder in the late 2000's at the July 2013 VA examination, and the latter disorder in the early 2000's at the March 2021 VA examination. Furthermore, an October 2002 VA treatment record reflects the Veteran's report of difficulty hearing over the last year and his denial of tinnitus at such time. Consequently, in light of the denial of relevant symptomatology at the time of his August 1968 separation examination and the inconsistency of his statements over time, the Board affords his report as to the onset and continuity of symptomatology referable to his bilateral hearing loss and tinnitus no probative weight. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, presumptive service connection for bilateral hearing loss and tinnitus is not warranted. Consequently, the Board finds that bilateral hearing loss and tinnitus are not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. Therefore, service connection for such disorders is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for bilateral hearing loss and tinnitus. As such, that doctrine is not applicable in the instant appeal, and such claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Breckenridge 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.