Citation Nr: 21042424 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-08 710 DATE: July 13, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Right ear hearing loss did not manifest in service, was not present to a compensable degree within the first post-service year; it was not first shown for years after service and current right ear hearing loss is unrelated to the Veteran's in-service noise exposure. 2. For the Veteran's first period of active duty service, left ear hearing loss did not manifest in service, was not present to a compensable degree within the first post-service year following the first period of service; and it is unrelated to the Veteran's in-service noise exposure. 3. There is clear and unmistakable evidence that Veteran's left ear hearing loss pre-existed his second period of active service, and, clear and unmistakable evidence that the preexisting left ear hearing loss was not aggravated by service. 4. Tinnitus is a symptom associated with the hearing loss that did not manifest in service, was not present to a compensable degree within the first post-service year, and was not shown for years after service and is unrelated to the Veteran's in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1111, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from July 1962 to January 1966 and in the United States Army from December 1996 to August 1997, with additional periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was before the Board in September 2015 and June 2020, when it was remanded for further development. A claim for service connection for vertigo was granted in the June 2020 Board decision, thus satisfying that claim previously on appeal. As explained in more detail herein below, the Board has bifurcated the issue of service connection for bilateral hearing loss. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (it is within VA's discretion to bifurcate claims) Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his diagnosed bilateral hearing loss is due to in-service noise exposure. Specifically, he reports that during his first period of active duty service, he served as an aerial photographer, working in close proximity to aircraft and that his photography lab was adjacent to the airfield and aircraft hangers. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. Service treatment records (STRs) reflect that the June 1962 enlistment report of medical examination for the first period of service reflects that whisper test revealed 15/15 for the right and left ear. The November 1965 separation report of medical examination reflects that audiometric testing showed hearing within normal limits, bilaterally. A September 1995 report of medical examination reflects that American National Standards Institute (ANSI) audiometric testing reveals: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 20 15 5 20 15 30 Left 30 20 25 50 70 70 The August 1997 separation report reflects that ANSI audiometric testing reveals: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Right 0 10 5 20 25 30 Left 5 30 50 60 70 70 The examiner noted high frequency hearing loss. In the coinciding report of medical history, the Veteran noted hearing loss. An October 1998 Army Reserve report of medical examination reflects that ANSI audiometric testing reveals: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 0 5 5 15 20 Left 0 10 25 45 45 Private treatment records from December 2002 reflect that the Veteran was seen by an ear, nose, and throat physician, Dr. M.M. He reported that the Veteran has a history of noise exposure in the form of guns, when he was a state trooper for 25 years, and a factory worker, when he was a mill worker prior to this occupation. He reported that he did not have pain in his ears and did not have tinnitus. Dr. M.M. noted that on audiogram, he had bilateral significant hearing loss. He reported that the left side was sharply sloping after 1000 Hz from a mild to severe hearing loss. On the right, he slopes after 3000 Hz to the moderate range. His speech discrimination scores were at 96 percent for the right ear and 88 percent for the left ear. Records from 2003 to 2007 continue to reflect that the Veteran had a history of asymmetric hearing loss that was worse on the left than the right ear. In 2007, he reported baseline tinnitus. During an August 2012 VA audiological examination, the Veteran reported that he has to ask people to repeat themselves, especially his wife. He reported that he misunderstands things and he had to have the television turned up. Audiometric testing revealed the following pure tone threshold in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 10 20 45 55 Left 10 15 25 60 85 His speech recognition scores, using the Maryland CNC test, were 96 percent for the right ear and 92 percent for the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The audiologist reported that she could not provide a medical opinion regarding the etiology of the Veteran's hearing loss without resorting to mere speculation. It was noted that there were no claims file or STRs available for review. In a September 2013 VA addendum medical opinion, the audiologist reported that the claims file and STRs were reviewed. She stated that the entrance examination in July 1962 and the separation examination in November 1965 suggest normal hearing at 500 to 600 Hz, bilaterally. She found that therefore, the Veteran's current hearing loss is not a direct result of military noise exposure. A November 2013 VA audiological examination report reflects that the Veteran reported that he has trouble hearing is grandchildren and wife for the last five years. Audiometric testing revealed the following pure tone threshold in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 0 15 25 55 60 Left 10 15 40 65 85 His speech recognition scores, using the Maryland CNC test, were 96 percent for the right ear and 92 percent for the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The audiologist reported that she could not provide a rationale as the claims file and STRs were not provided for review. In January 2015 argument submitted by the Veteran's representative, he argued that the hearing loss and tinnitus examinations were inadequate. He reported that the Veteran's first active duty period between 1962 and 1966 shows an awkward trend with his hearing. He reported that he worked with jet engine noise. The examiner failed to mention or afford him a concession of noise exposure. The examiner erred when opining that the Veteran's hearing was normal upon entrance and discharge. He reported that the Veteran's tests include a card with the results graphed in 1962, as well as whisper testing at that time, a January 1965 test with left ear hearing shifts, and a separation examination of November 1965 which show almost completely normal hearing. He reported that from these examinations, it can be easily observed that the Veteran's hearing suffered a slight change during his service, but even more importantly it can be observed that not all, if any, of these results were in units commensurate with those expressed in 38 C.F.R. § 3.385. He reported that some or all need to be converted to appropriate units. He also reported that the examiner did not observe the definition of "normal" hearing as defined by the IOM in its 2005 hearing loss study which lists it as 0 dB at the differing hertz tested. A December 2015 VA audiological examination report reflects that the Veteran reported that his wife has to repeat things to him all the time and he has difficulty watching television. Audiometric testing revealed the following pure tone threshold in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 10 20 45 55 Left 5 15 35 65 85 His speech recognition scores, using the Maryland CNC test, were 96 percent for the right ear and 96 percent for the left ear. The Veteran was diagnosed with bilateral sensorineural hearing loss. The audiologist found that the Veteran's bilateral hearing loss was 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 noted that the Veteran had two active service dates. She reported that the initial active duty enlistment examination in June 1962 was a whisper voice test which he scored a 15/15 in the right ear. At his separation examination date in November 1965, he had hearing within normal limits from 500 Hz through 6000 Hz in the right ear. The pure tone thresholds were 0 dB at all frequencies tested in the right ear. At the Veteran's second active duty tour examination dated September 1995, he had hearing within normal limits from 500 Hz through 4000 Hz (pure tone thresholds from 5 dB to 20 dB) with a mild 30 dB loss at 6000 Hz in the right ear. At an examination in October 1998, he had hearing within normal limits from 500 Hz through 4000 Hz (pure tone thresholds from 0 dB to 20 dB) with a moderate 45 dB loss at 6000 Hz in the right ear. The audiologist reported that hearing loss in the right ear existed prior to service. She found that the pre-existing hearing loss was not aggravated beyond normal progression. As rationale, she reported that there was no hearing loss during the Veteran's first tour. She concluded that there was an existing loss at the start of the second tour, however, it was not aggravated beyond normal progression. As for the left ear, the audiologist reported that the Veteran has two active service dates. She noted that the initial active duty enlistment examination dated June 1962 was a whisper test where he scored a 15/15 for the left ear. She noted that pure tone threshold was from 0 dB to 5 dB in the left ear. She reported that at the second active duty tour examination in September 1995, he had a mild 30 dB loss at 500 Hz and hearing within normal limits at 1000 Hz and 1000 Hz (with pure tone thresholds at 20 dB and 25 dB) with a moderate 50 dB loss at 3000 Hz and a moderately severe 70 dB loss at 4000 Hz and 6000 Hz. She reported that on the examination dated October 1998, he had hearing within normal limits from 500 Hz through 2000 Hz (with pure tone thresholds from 0 dB to 25 dB) with a moderate 45 dB loss at 3000 Hz, 4000 Hz, and 6000 Hz. She found that hearing loss existed prior to service and that it was not aggravated beyond normal progression in military service. As rationale, she reported that there was no hearing loss during the Veteran's first tour. She reported that there was an existing loss at the start of the second tour, however, it was not aggravated beyond normal progression and actually showed improvement in hearing in the high frequency range. A May 2021 VA audiological examination report reflects audiometric testing revealed the following pure tone threshold in decibels: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 20 40 65 65 Left 15 20 55 75 90 His speech recognition scores, using the Maryland CNC test, were 94 percent for the right ear and 94 percent for the left ear. The audiologist reported that there was no permanent threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the right and left ear. The audiologist opined that the Veteran's right ear hearing loss was 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 the whisper test at first entrance examination in June 1962 is a 15. The thresholds at separation examination dated November 27, 1965 are within normal limits. This was his first active duty time frame as a photographer for the Air Force. She reported that for the second period of service, the September 1995 examination is within normal limits from 500 Hz to 4000 Hz and the mild loss at 6000 Hz to 8000 Hz is not beyond normal progression. Likewise, for the left ear, she reported that the Veteran's left ear 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, the audiologist reported that the whisper test on entry to the Air Force was 15. She reported that thresholds on Air Force separation examination was within normal limits. She noted that the thresholds at examination in September 1995 show a mild to severe sloping sensorineural hearing loss at 4000 Hz to 8000 Hz. She reported that this is not beyond normal progression. She reported that the MOS of photographer on his first active duty time frame is low risk for hazardous noise exposure in the Air Force from July 1962 to January 1966. She reported that his MOS in traffic control carries a moderate risk of hazardous noise exposure from December 1996 to August 1997. She concluded that it is less likely than not that hearing loss is caused by military noise exposure. Upon review of the evidence of record, service connection for left and right ear hearing loss is not warranted. A September 1995 report of medical examination was considered by the VA examiners to be the Veteran's entrance report of medical examination prior to his second period of service that began in December 1996. However, a review of this report of medical examination reveals that the purpose of the examination was to qualify the Veteran for retention in the Army Reserves. Additionally, this examination was taken over a year before the Veteran began his second period of active duty in December 1996. In a July 2012 VA memorandum, it was noted that all of the STRs available for the Veteran was sent. Therefore, it appears that there is no copy of an actual entrance report of examination for his second period of service beginning in December 1996 in the claims file. Nonetheless, it is presumed that prior to any period of active duty service that an entrance examination was furnished, the presumption of soundness applies, even in cases where the entrance examination report was lost or missing in VA custody. Quirin v. Shinseki, 22 Vet. App. 390, 396, n.5 (2009). Therefore, the Board finds that the presumption of soundness applies to the Veteran's bilateral hearing loss disability prior to his activation to active duty in December 1996. The burden then falls on the government to rebut the presumption of soundness. As noted above, STRs reflect that the Veteran had hearing loss for VA purposes in his left ear prior to his second period of active duty service as noted in the September 1995 report of medical examination. Specifically, on testing at 3000 Hz of his left ear was 50 dB and at 4000 Hz was 70 dB. This constitutes hearing loss for VA purposes of the left ear and September 1995 was clearly prior to his active duty period beginning December 1996. Thus, there is clear and unmistakable evidence that the Veteran's left ear hearing loss pre-existed his second period of active duty service. Additionally, there is clear and unmistakable evidence that his left ear hearing loss was not aggravated by service. The December 2015 and May 2021 VA audiologists found that the Veteran's left ear hearing loss was not aggravated by service, stating that the threshold shifts, particularly in the higher frequencies, likely represented the natural progression of his left ear hearing loss. The VA audiologists provided a thorough rationale to support their opinions regarding the nature of the Veteran's hearing loss, thus their opinions are afforded significant 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). Moreover, the private physician, Dr. D.M. noted noise exposure through the Veteran's career as a trooper and in the mill that the Veteran did not mention during his VA examinations. There are no contrary medical opinions in the evidence of record, and the evidence does not otherwise indicate that the Veteran's pre-existing left ear hearing loss was aggravated by service; the evidence clearly and unmistakably shows a lack of aggravation by service. Additionally, as to the Veteran's first period of service, the May 2021 VA audiologist provided a thorough rationale as to why she found that the Veteran's left ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. Id. Specifically, she noted that the Veteran's MOS was as a photographer and was at a low risk for hazardous noise exposure. There was no hearing loss noted during the Veteran's first period of active duty service, and as explained above, his hearing loss in the left ear was not shown until September 1995; 29 years following separation from his first period of active duty service. As to the Veteran's right ear, for the following reasons, the presumption of soundness has not been rebutted with respect to the Veteran's right ear hearing loss. None of the audiological examinations done in service show hearing loss in the right ear for VA purposes. Hearing loss in the right ear was not shown until December 2002, well outside of the one-year period from separation of service in August 1997. There is no clear and unmistakable evidence showing that the Veteran had demonstrated right ear hearing loss before entry in December 1996 or any aggravation as he still did not have demonstrated hearing loss in the right ear on separation in August 1997. Where, as here, the government fails to rebut the presumption of soundness, the claim is therefore one for direct service connection. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The May 2021 found that the Veteran's right ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. Notably, she reported that the Veteran's MOS during his first period of service was as a photographer where there was a low risk for hazardous noise exposure. She also noted that his MOS for the second period of service provided a higher risk of hazardous noise exposure but found that his hearing loss was not due to his active military service. The VA audiologist provided a thorough rationale to support her opinion regarding the nature of the Veteran's hearing loss, and took into consideration his statements regarding his MOS. Thus, her opinion is afforded significant 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). Even taking into consideration the Veteran's statements that he was exposed to noise through his MOS as a photographer during his first period of service, the record reflects that hearing loss in the right ear was not shown until 29 years following his first separation. Notably, hearing loss of the right ear was not seen throughout any of his audiometric testing in active or reserve service. Moreover, as noted above, Dr. D.M. reported occupational noise exposure through gun use as a trooper and as a mill worker. This supports the May 2021 conclusion that the Veteran's right ear hearing loss was not due to his active military service. The Board acknowledges the Veteran's contentions regarding the etiology of his hearing loss. The question of etiology is one that a trained medical professional is better able to identify. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("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"). See also Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002) (holding that "evidence of temporary flare-ups... alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition is worsened."); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991) (holding that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened"). The specific, reasoned medical opinions are therefore entitled to significantly more probative weight on the question of etiology than the more general lay assertions. The claim for service connection for right and left ear hearing loss must be denied. The Board is bound by the applicable laws and regulations governing this appeal. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.105. 2. Entitlement to service connection for tinnitus The Veteran contends that his diagnosed tinnitus is due to his active military service. Upon review of the evidence of record, service connection for tinnitus is not warranted. The evidence of record does not reflect symptoms related to tinnitus until many years after the Veteran left active duty service. There is no treatment record documenting tinnitus until it was noted in 2007. The Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue and has done so in this case. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As part of this claim, the Veteran believes his tinnitus is related to in-service noise exposure. In this regard, he is competent to report an observable symptom such as tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). However, the Veteran's statements regarding the onset of his tinnitus have been inconsistent. During a 2012 VA audiology examination, he reported tinnitus that began "three or four" years ago. However, during a 2013 VA audiology examination, he reported tinnitus for the past 10 years that was constantly present. The December 2015 VA audiology examination reflects that the Veteran did not report recurrent tinnitus. He began to report recurrent tinnitus again during the May 2021 VA audiology examination. Nevertheless, the May 2021 examination confirmed a diagnosis of tinnitus. Moreover, the VA medical opinions have attributed the Veteran's tinnitus to his bilateral hearing loss. As noted above, the Veteran's bilateral hearing loss was determined not to be due to his active military service or aggravated thereby. As service connection for hearing loss has been denied in this decision, entitlement to service connection for tinnitus is not warranted as secondary to hearing loss. See 38 C.F.R. § 3.310 (a), (b) (secondary service connection warranted where disability is proximately due to, the result of, or aggravated by an already service-connected disease or injury). Greater probative value is afforded to the VA medical opinions given the internal inconsistencies regarding the Veteran's reported onset of tinnitus. (Continued on the next page) For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for tinnitus. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN 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.