Citation Nr: 21040155 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 19-27 809 DATE: July 2, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss disability is denied. FINDINGS OF FACT 1. Tinnitus is related to noise exposure in wartime service. 2. Bilateral hearing loss disability did not manifest in service or within one year of separation. The disability is not otherwise related to service. CONCLUSIONS OF LAW 1. Tinnitus was incurred in wartime service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1967 to March 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. It was remanded by the Board in January 2021 for additional development, to include conducting a treatment records search and obtaining an addendum opinion. VA treatment records dated into January 2021 were obtained, an addendum opinion was rendered in April 2021, and the matter has been returned to the Board. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases to include other organic disease of the nervous system will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service 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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Tinnitus The Veteran contends that he has bilateral hearing loss related to noise in service. He says that being a five ton truck driver and mechanic in service exposed him to loud truck noise, and that he was exposed to other loud artillery noises. Also, he reports that he did not deny having tinnitus as was recorded in an August 2018 VA audio examination; rather, he reports having had tinnitus since service. See September 2019 VA form 9 and June 2018 Notice of Disagreement (NOD), see also July 2019 buddy statement about military truck noise. The Veteran maintains that he has had ringing in his ears since service. In his September 2019 VA form 9, he stated that he "had tinnitus since being in the Army." In his June 2019 NOD and in a July 2019 statement, he stated that ringing in his ears began in service. While for some reason he was reported to have denied tinnitus during his 2018 VA examination, he later clarified in these documents it had been present since service. Further, Dr. RD diagnosed tinnitus in June 2019. The Board concludes that while the Veteran's tinnitus was not diagnosed during service, it was manifest in service, and there has been continuity of the same symptomatology since service. In any event, he is competent to identify the existence of this disorder because it is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). While the Veteran did not complain of tinnitus or ringing in the ears during active service, it is accepted that he had exposure to noise as described. While he did not claim tinnitus until he filed his April 2018 claim, he has reported in connection with this claim that he first noted it in service after exposure to noise as a truck mechanic, and due to field exercises with artillery, in Germany from 1967 to 1969. As ringing in the ears is capable of lay observation, and his statements are credible and entitled to probative weight because they are internally consistent and consistent with other evidence of record, continuity of symptomatology is established. The Board acknowledges that the April 2021 opinion of the VA examiner that tinnitus was possibly compounded by life experiences and not as likely as not related to service. We also acknowledge some denials of tinnitus in review of systems in the treatment record. However, the Board finds the Veteran's written assertions, to include those in his NOD, VA form 9, and his other statement as to continuity of tinnitus since service to be more probative. Again, tinnitus is subjective. Also, his assertions are consistent with and partially formed the basis for Dr. RD's favorable observations. We conclude that tinnitus was present since service. Service connection is thus warranted. 2. Hearing loss disability The issue for the Board is whether the Veteran has a current hearing loss disability that began during service or is at least as likely as not related to an in-service injury or disease. The hearing loss determination is governed by 38 C.F.R. § 3.385. 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. There is hearing loss disability for VA purposes as demonstrated in the August 2018 VA examination audiogram. The diagnosis was bilateral sensorineural hearing loss (SNHL). The Board will next address whether the Veteran's current hearing loss manifested in service or within the applicable presumptive period, or whether it is otherwise related to service. Sensorineural hearing constitutes chronic disease under 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a) as other organic diseases of the nervous system. The Board concludes for the following reasons that the disorder did not manifest for years following service, and continuity of symptomatology is not established. 38 C.F.R. § 3.303 (b). Hearing loss did not manifest in service or within the applicable presumptive period. This is demonstrated by the March 1969 audiogram at service separation examination. The audiogram did not reflect results that meet 38 C.F.R. § 3.385, there is no indication of hearing loss noted by the examiner at that time, and the April 2021 VA examiner (who reviewed the entire record) noted that there was no hearing loss or threshold shift during the Veteran's service. The Veteran denied hearing loss on the separation examination. Thus, there is no indication of hearing loss in the service treatment records. Moreover, there are no records of complaints or findings of hearing loss during the first post service year or for years thereafter. Nor does the Veteran himself actually assert that he has had continuous hearing loss since service. Rather, he asserts there is a relationship between current hearing loss and noise exposure in service. It is uncontroverted that treatment for hearing loss at VA dates from decades after service. The Veteran reported at his August 2018 VA exam that hearing loss began in 2005. Also, as noted in the Board remand, the Veteran advanced in July 2019 that his ex-wife had noticed his worsening hearing in about 1976, approximately seven years after service. We also note that he presented an opinion from Dr. RD. that the in-service noise exposure was an "aggravating factor" of the currently diagnosed bilateral hearing loss. In January 2018, when getting new hearing aids at VA, he noted that an old pair were purchased in 2010. He reported he was exposed to noise in service driving a truck and also at work in the past in a tool department. At that time, audiometric results reportedly revealed a moderate to profound SNHL bilaterally. The Board accords substantial probative weight to the competent medical evidence, the service treatment record and the April 2021 VA audiologist's opinion, which establish that there was no hearing loss at separation. While the Veteran is competent to report having experienced certain symptoms, he has not asserted in connection with this claim that he has had symptoms of hearing loss during service or the presumptive period. Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a nexus exists between the Veteran's hearing loss and the conceded in-service noise exposure. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Here, the Board notes that hearing loss was first noted many years after service and has not been related to service by any competent evidence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Again, even the Veteran did not actually assert hearing loss was present since service. He has simply asserted that current hearing loss is related to noise in service. The April 2021 VA audiological evaluation reflects the examiner's opinion that although there is a history of noise exposure in service, the current hearing loss is less likely than not related to service. The examiner was instructed that, in rendering this opinion, they should specifically address the June 2019 private treatment record from Dr. RD in which in-service noise exposure is listed as an aggravating factor, and the Veteran's July 2019 lay statement concerning the onset of hearing loss in about 1976. The rationale was as follows: Veteran served in the Army 1967 to 1969. He reported being exposed to loud noises while performing his military job duties as Light Vehicle Driver/Truck Driver. Although the MOS has a moderate or high probability for hazardous noise exposure, he maintained normal (considered to be -10 to 25dB) hearing thresholds in both ears with no significant (>15dB) threshold shifts noted for either ear. Veteran reported a history of occupational noise exposure after the military. There were no complaints of hearing loss found in the claims file, until the VA Audio and HAE exam dated 01-09-2018, which is 49 years post discharge. VA Audio C&P exam dated 08-01-2018 noted bilateral hearing loss and Veteran reported the hearing loss started in 2005 and recurrent tinnitus was denied. Veteran was seen by [RD], M.D. Ear, Nose and Throat Specialist in [V], and progress note dated 06-27-2019 (50 years post discharge) noted complaints of hearing loss over the past several years with associated symptoms including ringing in ears. He noted no specific timing of symptoms. He noted a history of military and occupational noise exposure and aggravating factors to include former smoker, diabetes, HTN, family history of hearing loss and occupational noise exposure. There is no new evidence that the Veteran was evaluated for hearing loss or tinnitus, until 2018, which is 49 years post discharge. The Veteran's statement alone, without medical evidence, was that the hearing loss started in 1976, which is 7 years post discharge. While military noise exposure is conceded, the Veteran maintained normal hearing thresholds in both ears up until discharge. There is no new evidence to link the hearing loss or tinnitus to the active duty service 1967 to 1969 nor within 1 year of discharge. It is less likely than not, that the Veteran's hearing loss was caused by his military noise exposure 1967-1969. Hearing loss and/or tinnitus can be compounded by life experiences such as aging, hereditary, trauma, illness, disease process, ototoxic medications, occupational noise exposure and/or recreational noise exposure, all of which can affect hearing sensitivity. While the Veteran believes his hearing loss is due to noise exposure in service, the issue of nexus in this case is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). He is not competent to make such an opinion. In weighing the evidence, the Board finds that the medical evidence of record, and the lack of competent support for the Veteran's theory, preponderates against the claim. The 2021 VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds it to be the most probative evidence for its reasons and bases. The examiner has fairly considered the material evidence of record to include Dr. RD's statement as required in by the Board remand. They provided sound reasons for concluding that there is no relationship between the current hearing loss and service. The weight of the evidence is against concluding that the Veteran's hearing loss was incurred in service. 38 C.F.R. § 3.303 (d). The preponderance of the evidence weighs against finding that any bilateral hearing loss is related to service. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.