Citation Nr: 21042735 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 20-09 474 DATE: July 13, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. A hearing loss disability was not manifest in service or within one year of separation from service and was not otherwise caused by the Veteran's active service. 2. Tinnitus was not manifest in service or within one year of separation from service and was not otherwise caused by the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from January 1961 to January 1977 and from January 1981 to October 1981. These matters come before the Board of Veterans' Appeals (Board) from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his March 2020 VA Form 9 the Veteran requested a video conference hearing, but later withdrew his hearing request in October 2020 correspondence. Thus, the Board deems the request for a hearing withdrawn. 38 C.F.R. § 20.704(e) (2019). The Board most recently remanded these issues to the RO for additional development in April 2021. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). After development was completed, the Agency of Original Jurisdiction (AOJ) issued a supplemental statement of the case (SSOC). The Veteran and his attorney were informed that they had 30 days from the date of the SSOC to respond. In June 2021 correspondence, the Veteran and his attorney were notified that the appeal was returned to the Board and resumed its place on the docket. As such, the Board will proceed with adjudication. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110. 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). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. In addition to the above-noted legal authority, the Board notes that the threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for bilateral sensorineural hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that his bilateral hearing loss and tinnitus are the result of acoustic trauma during service. Personnel records show that he served as a jet engine mechanic. The Board notes that, prior to November 1967, service department audiometric results were reported using standards set forth by the American Standard Association (ASA). Since November 1,1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). As VA's current definition for a hearing loss disability, found at 38 C.F.R. § 3.385, is based on ISO-ANSI units, military audiograms dated before November 1967 must be converted from ASA to ISO-ANSI units prior to making findings related to a claimed hearing loss disability. ASA units are converted to ISO-ANSI units by adding 15 decibels to the finding at 500 Hz; 10 decibels to the findings at 1000 Hz, 2000 Hz, and 3000 Hz; and 5 decibels to the finding at 4000 Hz. Service treatment records are negative for any documentation of complaint, relevant findings, treatment for, or diagnosis of hearing loss or tinnitus. An audiogram at his entrance examination in February 1961 revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 5 (15) 5 (10) LEFT 15 (30) 10 (20) 0 (10) 30 (45) 15 (20) An audiogram at an April 1961 examination revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 0 (10) 0 (10) 0 (5) LEFT 15 (30) 10 (20) 5 (15) 10 (25) 15 (20) The Veteran denied experiencing tinnitus or ear pain. The Veteran underwent an audiogram in January 1962, 10-29 minutes following noise exposure. Results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -5 (5) -5 (5) -5 (0) LEFT 0 (15) -5 (5) -5 (5) 15 (25) 15 (20) The Veteran denied experiencing tinnitus or ear pain. An audiogram at a June 1964 examination revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -5 (5) 0 (10) 5 (10) LEFT 0 (15) 0 (10) 0 (10) 15 (25) 10 (15) The Veteran attended an audiogram in December 1966, following noise exposure 30 minutes prior to the examination. Results revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 0 (10) 5 (15) 5 (10) LEFT 5 (20) 5 (15) 10 (20) 15 (25) 25 (30) No tinnitus was reported. An audiogram at an August 1967 examination revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -5 -5 0 LEFT 0 0 5 15 15 An audiogram at an August 1973 examination revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 10 LEFT 20 15 15 30 20 At separation on the audiological evaluation in August 1981 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 5 10 LEFT 15 15 10 20 15 On his corresponding Report of Medical History form, the Veteran denied ever experiencing any ear trouble or hearing loss. Given that the Veteran's February 1961, April 1961, January 1962, June 1964, and December 1966 audiograms are dated prior to November 1967, and there is no indication that ISO-ANSI standards are used, it is assumed that audiometric findings in the report used the ASA standard. All the hearing conservation test reports indicated that hearing protection was worn. The Veteran submitted a claim for entitlement to service connection for hearing loss and tinnitus in November 2017. He reported treatment beginning in 2017. A December 2017 VA examination shows that the Veteran has a current diagnosis of bilateral hearing loss and tinnitus. The Veteran did not report when his tinnitus began. The examiner opined that the Veteran's hearing loss and tinnitus were less likely than not a result of military noise exposure. The examiner acknowledged that the Veteran was exposed to noise while in the military but reasoned that his separation examination was within normal limits and there was no mention of tinnitus. In October 2020 correspondence, the Veteran's representative stated that the Veteran was exposed to consistent, high noise levels every day for years, for eight hours a day, and five days a week with jet engines constantly whining while working as a Jet Engine Technician in service. Since leaving service, the Veteran did not experience loud noise exposure. The representative referred to an article from UC Health by a physician suggesting that just as sun exposure accumulated over time and could lead to skin cancer, noise exposure could lead to hearing loss years or decades later. The author also noted, "The sources of loud noise are everywhere from movie theaters to concerts to the earbuds that seem to be permanently lodged in young people's ears." The representative stated that consistent exposure to loud noise over time was cumulative and could ultimately cause serious damage to an individual's hearing as well as tinnitus. The representative added that the article appeared to suggest that the Veteran's military noise exposure likely caused his hearing loss and tinnitus, even though the conditions did not manifest until years later. In a February 2021 VA medical opinion, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned, in part, that there were no significant permanent shifts in hearing thresholds based on the Veteran's hearing conservation data audiograms and on his separation examination. An additional opinion was obtained in May 2021. The examiner reviewed the claims file and determined that the Veteran's hearing loss and tinnitus were unrelated to his service. He acknowledged noise exposure was consistent with the Veteran's duties as a jet engine technician but determined that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation. The examiner found the STRs probative because the hearing tests were objective evidence reflecting no permanent auditory damage on active duty from conceded noise. He also noted that there was no report of complaints or treatment for hearing during the Veteran's service. The examiner noted that during the February 2021 VA examination, the Veteran reported the onset of hearing loss in the mid 1980's, approximately 5 years after separation. To support his conclusions, the examiner cited a 2006 IOM study, which indicated that there were no studies on humans indicating delayed onset hearing loss from noise exposure. He acknowledged that there had been an attempt to dispute this statement, but all research had been conducted on rats. Those studies had evidence suggesting damage to inner ear structures at the time of noise exposure that may lead to later onset hearing loss. However, he cited additional research which determined that "when one empirically analyzes animal models using scientific tools, they fall far short of being able to predict human responses." He went on to explain the vast differences between rats and humans and determined that generalizing findings from rodent studies to humans is fraught with difficulties and at best, should be undertaken with great caution. The examiner explained that any noise exposure through the Veteran's life, including traffic noise, smoke alarms, etc., would have to be considered in addition to any military noise exposure. In support of his opinion, the examiner explained that there were many factors that contributed to age related hearing loss, including genetic predisposition and medical conditions. This would also be applicable to tinnitus as the two conditions are so closely related and have had a similar onset. The examiner also addressed the UC health article referenced by the Veteran's representative in October 2020 correspondence. He explained that the article referred to hearing loss present at separation that then progressed over time. In this situation however, the examiner stated that the Veteran's report of hearing loss symptoms began five years following his discharge and indicated a late onset of the hearing loss from military noise exposure. "Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on military noise alone." He concluded that, "there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case; therefore, it is less likely than not that the hearing loss is related to military noise exposure." He also explained that hearing loss and tinnitus are separate ratable etiologies that often occur together as they have a similar anatomical origin. However, hearing loss and tinnitus do not cause one another. Hearing loss can be present with no tinnitus, and tinnitus present with normal hearing. After consideration of all the evidence of record, the Board finds that the weight of competent and credible evidence is against finding that service connection for hearing loss or tinnitus is warranted. The Board concludes that service connection is not warranted as the Veteran's hearing loss and tinnitus did not begin during service and is not attributable to service. The Board has considered the Veteran's contentions regarding the etiology of his hearing loss and tinnitus; however, the record does not reflect that he had the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier and he is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that it was not until after the Veteran pursued a claim for compensation that he reported continuous symptoms from the time of the 1969 ear infection. When he initially sought treatment for right ear hearing loss in 2007, he explicitly reported that his symptoms had only started within the last several years. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). There is no competent opinion of record relating the Veteran's hearing loss or tinnitus to his service. After consideration of all the evidence of record the Board finds that the evidence is against finding that service connection for the Veteran's bilateral hearing loss disability is warranted. The Board concludes that service connection is not warranted on a direct basis as the Veteran's current hearing loss was not caused by service. The Veteran's reports of the onset of his hearing loss in-service warrant low credible and probative weight as they are not consistent with the STRs at discharge from active duty when clinical evaluation of the ears was normal, and his audiogram was within normal limits. The Board finds that the medical evidence is more probative and credible than the lay opinion of record. The Board gives more probative weight to the competent medical evidence, specifically the May 2021 VA opinion, which each found that the Veteran's current hearing loss and tinnitus were less likely than not incurred in or caused by service and provided a thorough analysis and rationale. The examiner noted that the Veteran had normal hearing at the time of separation and did not report any signs or symptoms of hearing loss until five years following his discharge. The Board finds the May 2021 VA opinion is entitled to significant probative weight, as it is based on a review of the entirety of the record, and the medical literature, and are more probative and credible than the lay opinion of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Even with consideration of and converting to ISO-ANSI the Veteran did not have positive threshold shifts from his entrance to his separation. The Board notes positive threshold shifts during his service and immediately following noise exposure, but as reflected in the separation examination, no permanent threshold shifts occurred. In addition, the Board concludes that, while the Veteran has hearing loss and tinnitus, which are chronic diseases under 38 U.S.C. § 1101(3)/38 C.F.R. § § 3.309(a), they were not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Neither tinnitus nor a bilateral hearing loss disability was "noted" during service or within one year of separation. See Walker, 708 F.3d 1331. Based on the probative evidence of record the Board finds that the Veteran's hearing loss did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. Furthermore, the Veteran did not report receiving treatment until 2017. As a result, service connection based on continuity of symptomology is not warranted. As such, the Board finds that service connection for a hearing loss disability and tinnitus are not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.