Citation Nr: 21041389 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-50 503 DATE: July 9, 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 preponderance of the evidence is against a finding that the Veteran's current bilateral hearing loss disability was caused by or incurred in service. 2. The preponderance of the evidence is against a finding that the Veteran's tinnitus disability was caused by or incurred in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310 (2019). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1966 to November 1968. This case comes on appeal of an April 2016 rating decision. This case was previously before the Board in September 2020. At that time, the Board remanded the claims to afford the Veteran with an adequate VA examination. The Board notes that the Veteran filed a claim of entitlement to service connection for bilateral hearing loss and tinnitus in October 2014 and the agency of original jurisdiction (AOJ) denied this claim in a May 2015 rating decision. The Veteran did not submit a notice of disagreement with this decision. Instead, the Veteran filed a new claim of entitlement to service connection for these issues in March 2016. The Veteran accompanied this new claim with new audiometric evidence. In the April 2016 rating decision on appeal, the AOJ stated that the claims of entitlement to service connection were reopened and then adjudicated these claims on the merits. Notably, irrespective of whether a claim that was denied and became final has since been adjudicated on the merits by the AOJ, the Board must make its own determination as to whether new and material evidence has been received to reopen the issue. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). However, in the September 2020 decision, the Board did not do so. Upon review of the evidence, the Board here finds that the medical information the Veteran submitted with his March 2016 claim represented new and material evidence within one year of the May 2015 rating decision. In declining to address the issues of reopening in its September 2020 decision, the Board implicitly found as such. Thus, under the provisions of 38 C.F.R. § 3.156(b), it is the Veteran's initial October 2014 claim that has remained on appeal and not the new claim from March 2016. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, the linkage element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Sensorineural hearing loss and tinnitus may be considered organic diseases of the nervous system for the purposes of 38 C.F.R. § 3.309(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for bilateral hearing loss As was discussed above, the Veteran first filed a claim of entitlement to service connection for hearing loss in October 2014. In March 2015, the Veteran underwent a VA examination in association with his claim. At that time, the examiner determined that the Veteran's puretone threshold tests were not valid for rating purposes because the Veteran's responses were inconsistent, even following reinstruction, and that this was indicative of a nonorganic hearing loss. The Veteran's Maryland CNC speech discrimination scores were 94 percent in the left ear and 100 percent in the right ear. Given that the speech discrimination scores represented the only valid diagnostic evidence, this examination did not demonstrate a hearing loss disability for VA purposes. 38 C.F.R. § 3.3185. The Veteran then underwent a new VA examination in December 2020. At that time, the examiner deemed the Veteran's puretone threshold tests to be valid and these tests demonstrated a bilateral hearing loss disability. Thus, the Veteran has a documented disability during the pendency of the service connection claim and has satisfied the first requirement of service connection. At issue is whether the disability was caused by or incurred in service. Service treatment records demonstrate that the Veteran's hearing acuity was measured in August 1966, prior to his entry to service. At that time, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 10 n/a 20 LEFT 20 20 15 n/a 40 The Board notes that service department records dated prior to November 1, 1967 are presumed to use the American Standards Association (ASA) standard, rather than the current International Standards Organization American National Standards Institute (ISO-ANSI) standard. Conversion to ISO-ANSI units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. When converted, the Veteran's results are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 20 n/a 25 LEFT 35 35 25 n/a 45 The Veteran was also examined at the time of separation from service, in October 1968. At that time, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 10 5 LEFT 5 5 0 10 10 The presumption is that these findings were recorded under the ISO-ANSI standard. However, more recent research has revealed that the conversion date of November 1, 1967 may not have been consistent among all military branches prior to December 31, 1970. Thus, in order to resolve all reasonable doubt in the Veteran's favor, the Board considers the possibility that his data was recorded under the ASA standard. In such a case, the Veteran's puretone thresholds under the ISO-ANSI standard would be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 10 20 10 LEFT 20 15 10 20 15 Under either the ASA or the ISO-ANSI standard, the Veteran's hearing acuity at the time of separation does not meet the definition of a hearing loss disability. Therefore, the evidence does not suggest that the disability had its onset in service. What remains at issue is whether the Veteran's hearing loss disability was caused by an in-service injury or event. The Veteran has testified that, in the course of his service duties as a mechanic, he was exposed to loud noises from tank and airplane engines and did not have hearing protection. The Board finds the Veteran's description of his service consistent with his documented duties as a wheeled vehicle mechanic as well as engine repairman and general vehicle repairman. At the time of the Veteran's March 2015 VA examination, the examiner was asked to provide an opinion as to whether the Veteran's claimed hearing loss was caused by service. Although the examiner provided a negative nexus opinion, as the Board discussed in its September 2020 remand, the examiner cited to an incorrect factual record. Because of this, it was not clear that the examiner had properly reviewed the Veteran's record and the Board could not consider the opinion to hold probative value. As a result, in the September 2020 remand, the Board instructed the AOJ to obtain a new examination and opinion. At the time of the December 2020 examination discussed above, the examiner opined that it was less likely than not that the Veteran's hearing loss disability was caused by or incurred in service. By way of rationale, the examiner explained that there was no significant permanent shift in hearing thresholds from entrance to separation. Thus, even though the examiner conceded that the Veteran had in-service noise exposure, hearing loss could not be conceded based on noise alone. Rather, the examiner explained, there must be evidence of auditory damage from that noise exposure. The fact that there was no significant permanent shift in the Veteran's hearing thresholds was objective evidence that there was no permanent auditory damage during active duty. In the absence of objective evidence of in-service auditory damage, the evidence was against a finding that hearing loss was related to military noise exposure. The December 2020 examiner's opinion is based on an accurate evaluation of the Veteran's medical records and is supported by a medical rationale. The Board therefore considers this opinion to be adequate and probative. To date, the only evidence of record to support the Veteran's contention that hearing loss is related to in-service noise exposure comes from the Veteran's own statements. As a layperson, the Veteran is not competent to provide such an opinion as ascribing an etiology for hearing loss requires medical expertise. The Board also notes that there is no evidence that hearing loss had a continuity of symptoms since service, or that hearing loss manifested to a compensable degree within one year of service. Indeed, in a January 2006 VA evaluation, puretone threshold testing revealed hearing within normal limits and a speech discrimination of 100 percent in each ear. Therefore, the evidence demonstrates that hearing loss did not reach a level of disability for VA purposes until several decades after the Veteran's separation from service. Accordingly, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss disability was caused by or incurred in service. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As an additional matter, the Board notes that the Veteran's entrance examination revealed hearing acuity that meets the definition of a left ear hearing loss disability for VA purposes, if applying ISO-ANSI standards to the examination, and a bilateral hearing loss disability if applying ASA standards to the examination. When a disability is noted on entry to service, the presumption of soundness does not attach, and VA must instead consider the Veteran's claim on the basis of aggravation. 38 C.F.R. §§ 3.304(b), 3.306. As it pertains to hearing loss, audiometric findings of hearing loss may, on their own, be considered notation of a pre-existing disability, provided the hearing loss meets the definition of a hearing loss disability under 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). Here, although the audiometric data on entrance demonstrates, at a minimum, a left ear hearing loss disability, the Board finds that addressing the Veteran's claim as a pre-existing disability would not be beneficial to the Veteran. Indeed, in light of the apparent improvement of the Veteran's hearing acuity between entrance and separation, there is, objectively, no evidence that the disability worsened during service. Moreover, given these recorded improvements over time, the Board cannot rule out that the readings on entry represented a testing anomaly, or a temporary reduction in hearing specifically at the time of the examination. Therefore, considering these factors, the Board declines to address the claim under the provisions of 38 U.S.C. § 1153; 38 C.F.R. § 3.306, as doing so would only be prejudicial to the Veteran. 2. Entitlement to service connection for tinnitus At his December 2020 VA examination, the Veteran reported ongoing tinnitus. The Board notes that, unlike hearing loss as defined by VA, tinnitus is a disability that is capable of lay observation. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, the Veteran's current tinnitus disability is not in question. At issue is whether tinnitus was caused by or incurred in service. At the December 2020 examination, the examiner opined that it was less likely than not that tinnitus was caused by or incurred in service. The examiner noted that the Veteran did not complain of tinnitus in service treatment records, to include at the time of separation. Rather, the examiner observed, the first observation of a complaint of tinnitus was in a January 2006 VA treatment record. Moreover, the examiner opined that tinnitus is known to be a symptom associated with hearing loss and was therefore more likely associated with the Veteran's diagnosed hearing loss disability. Much like with hearing loss, the examiner opined that the lack of significant auditory threshold shifts in service demonstrated the absence of the type of in-service auditory damage necessary to cause tinnitus. The Board notes that at his February 2015 VA examination, the Veteran reported that he started experiencing continuous ringing in his ears when he was at Fort Bragg between 1966 and 1967. As was noted above, the Veteran is competent to report the history symptoms. Nevertheless, the Board finds this statement to lack credibility. First, as the December 2020 examiner observed, there were no complaints of tinnitus noted in the Veteran's service treatment records. More significantly, however, VA treatment records show that the Veteran first reported a complaint of tinnitus in January 2006, while seeking treatment. At that time, the Veteran reported that he had begun experiencing occasional tinnitus, only in the right ear. This statement contradicts the Veteran's February 2015 claim that his tinnitus was both bilateral and continuous since the 1960s. The Board finds the Veteran's January 2006 statement to be the more credible of the two. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value than statements made for the purposes of seeking compensation). Thus, given the competent and probative opinion from the VA examiner explaining why tinnitus is more likely related to non-service connected hearing loss rather than in-service noise exposure, as well as the Veteran's more credible January 2006 statement that he had recently begun experiencing occasional tinnitus in only the right ear, the preponderance of the evidence is against a finding that tinnitus was caused by or incurred in service. As the preponderance of the evidence is against this finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.