Citation Nr: 21040119 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-21 510 DATE: July 2, 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 discharge 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 discharge 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, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2016 by a Department of Veterans Affairs (VA) Regional Office. The Veteran's requested hearing was scheduled for September 24, 2020. However, the Veteran was informed via telephone that the hearing was cancelled due to COVID closures. A voice message was left informing the Veteran that he had an opportunity to postpone, move to virtual hearing, or allow a Veterans Law Judge to make a decision based on the evidence of record without a hearing. A week later, the Veteran was called again to inform him of his options. Subsequently, a virtual hearing was scheduled for May 19, 2021; however, the Veteran did not show for the hearing. The Veteran did not submit any statements indicating why he did not show for the scheduled virtual hearing or asking for it to be rescheduled. Thus, his hearing request is considered withdrawn. 1.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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 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. 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. See 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. See 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, 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 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 suffered while he was in military service. See Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a 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.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his currently diagnosed bilateral hearing loss and tinnitus is the result of in-service noise exposure. In this regard, the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnoses referable to bilateral hearing loss, to include in consideration of conversion of his November 1966 audiogram to International Standards Organization-American National Standards Institute units. There is no separation report of medical examination of record, however what appears to be the separation report of medical history reflects that the Veteran did not report that he had or was then having hearing loss. Additionally, in an August 1968 statement of medical condition, the Veteran reported that he underwent a separation medical examination more than three working days prior to his departure from place of separation and there has been no change in his medical condition. His military occupational specialty (MOS) was noted as a cook. In his April 2016 notice of disagreement, the Veteran reported that he served in Korea as a combat engineer. He stated that they were on open bay helicopters every other month for his 13-month assignment. He also reported that in his Advanced Individual Training (AIT) he used anti-personal and anti-tank mine fields and C-4. There was no hearing protection issued. A January 2017 private audiology examination revealed results consistent with bilateral sensorineural hearing loss of moderate to severe degree. The audiologist noted that the Veteran reports bilateral tinnitus. His speech discrimination scores were 84 percent for the right ear and 88 percent for the left ear. However, no opinion was provided. A March 2017 VA examination report reflects that that the Veteran reported military noise exposure from artillery, weapons, and explosives. The audiologist noted occupational noise for 40 years in industrial plant settings intermittently and hearing protection was required. He was in industrial maintenance and design. His recreational noise exposure included hunting/shooting and hearing protection was worn. VA audiometric testing revealed the following pure tone thresholds in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 30 50 35 65 70 Left 20 40 35 40 50 His speech discrimination scores were 80 percent for the right ear and 100 percent for the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The audiologist found that the Veteran's bilateral hearing loss is not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. As rationale, she reported that normal hearing was documented at the time of enlistment. She reported that although there was no subsequent testing, the DD-214 does not support routine exposure to hazardous noise. She reported that there is also no mention of any incident of acoustic trauma. The Veteran's statement regarding military noise while in open bay helicopters and AIT noise sources were noted. She reported that based on this information, there is no evidence to suggest that the current high frequency sensorineural hearing loss is directly related to any active military duty. There is no evidence in the record that the Veteran sustained noise injuries based on audiograms. If there is a current hearing loss, there is no basis to conclude that this hearing loss was causally related to military service. The Institute of Medicine (2006) reported that, based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure. The Institute of Medicine stated there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. Therefore, she concluded, there is no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure. The Veteran reported that tinnitus was first notice after AIT. The audiologist found that there is no evidence in the record that the claimed tinnitus is causally related to noise injury during active duty. She reported that because there is no evidence that hearing loss or significant threshold changes occurred during military service, there is no basis on which to conclude that claimed tinnitus was caused by military noise exposure. In the absence of an objectively verifiable noise injury during active duty, the association between claimed tinnitus and military noise exposure is speculative. She reported that in order to give an opinion that tinnitus is related to military noise exposure, you would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. She reported that such an opinion would directly contradict the objective evidence in record. In June 2017 correspondence, the Veteran reported that during basic training, they trained with M14 rifles which had a much greater noise level than its counterpart the M16 rifles and other various weapons to include a hand grenade. He reported that they did low crawling under live machine gun fire with dummy explosives going off next to his ears. He reported that during training they were exposed to very loud noises. He reported hearing protection was not suggested or provided. Upon review of the evidence of record, the Board finds that service connection for bilateral hearing loss and tinnitus must be denied. As an initial matter, the Board finds that the Veteran has a current bilateral hearing loss and tinnitus disability and that the Veteran has competently asserted in-service noise exposure. The Board accepts the Veteran's assertions as to his noise exposure as credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Thus, the dispositive issue is whether there is a nexus between the two. As noted, no bilateral hearing loss and tinnitus was shown in service nor was such competently and credibly indicated for many years thereafter. The evidence of record first documents hearing loss to an extent recognized as a disability by VA in January 2017 bilaterally; well outside of the one year presumptive period. Significantly, neither in the statements submitted in connection with the appeal nor during the VA examinations did the Veteran indicate that he had continuity of hearing loss and tinnitus symptomatology since service. Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable). Consequently, there is no medical or lay evidence that hearing loss and tinnitus had its onset during service, within the one year presumptive period, or for many years thereafter, and 38 C.F.R. § 3.303(b) is not for application. In addition, the March 2017 VA audiologist explained the reasons for her conclusion based on an accurate characterization of the evidence of record as well as medical literature. The opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The VA examiner based her conclusion on multiple factors and neither the examiner nor the Board's conclusion of a lack of a relationship between hearing loss and tinnitus and in-service noise exposure is based solely on the normal hearing testing at separation. Cf. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Notably, while there is no separation examination of record, in the Veteran's report of medical history, he did not indicate hearing loss or tinnitus symptomatology. To the extent that the Veteran has opined that his hearing disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's testimony as to the etiology of his current hearing disability and tinnitus is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 ("sometimes the layperson 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"). To the extent that his lay statements are competent, the Board finds the specific, reasoned opinion of the VA medical professional in March 2017 to be of greater probative weight than the Veteran's more general lay assertions. Additionally, while the Veteran asserts that he was a combat engineer in service, the combat rules are not for application because the Veteran did not indicate he had bilateral hearing loss symptoms in service. Cf. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). Moreover, as noted above, the Veteran's MOS was as a cook and there is no indication in his military personnel records that he served in combat. The weight of the probative evidence is therefore against direct service connection. Thus, the preponderance of evidence is against a relationship between the Veteran's hearing loss disability and tinnitus and in-service noise exposure. For the foregoing reasons, entitlement to service connection for bilateral hearing loss and tinnitus is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. K. Clark Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.