Citation Nr: 22016643 Decision Date: 03/23/22 Archive Date: 03/22/22 DOCKET NO. 16-54 456 DATE: March 23, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDING OF FACT The Veteran's hearing loss and tinnitus did not manifest in or within one year after active duty service, there was no continuity of symptomatology from service to diagnosis, and his conditions are otherwise unrelated to service, to include in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1970. He then was a member of the National Guard from approximately 1971 to 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision. In February 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. The Board remanded the matter in October 2021 for further development. There was substantial compliance with the remand instructions, and another remand is unnecessary. The Veteran seeks service connection for current hearing loss and tinnitus disorder. He contends that his conditions are related to exposure to military noise like gun shots and generators. Because hearing loss and tinnitus are considered "chronic diseases" under 38 C.F.R. § 3.309(a), the Board analyzed entitlement to service connection on a direct and presumptive basis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board finds, however, that service connection is not warranted on either basis. The Veteran's service treatment records are associated with the claims file and appear to be complete. The entrance audiogram shows the right and left ear hearing thresholds, in decibels, were as follows: 0 (500); 0 (1000); 0 (2000); 0 (3000); 0 (4000). Based on VA policy, because the Veteran's entrance audiogram was conducted between January 1967 and December 1970 and does not indicate which standard was used, the results must be analyzed as under both ASA and ISO-ANSI standards. The entrance results for the right and left ears after conversion to the ISO-ANSI standard would be as follows: 15 (500); 10 (1000); 10 (2000); 10 (3000); 5 (4000). The Veteran's separation audiogram was also conducted between January 1967 and December 1970 and does not indicate which standard was used; accordingly, the results must be analyzed as under both ASA and ISO-ANSI standards. The separation audiogram shows the right ear hearing thresholds, in decibels, were as follows: 5 (500); 5 (1000); 5 (2000); 10 (3000); 15 (4000). If the right ear separation examination was performed under the ASA standard, the results after conversion to the ISO-ANSI standard are as follows: 20 (500); 15 (1000); 15 (2000); 20 (3000); 20 (4000). The separation audiogram shows the left ear hearing thresholds, in decibels, were as follows: 10 (500); 10 (1000); 10 (2000); 15 (3000); 15 (4000). If the left ear separation examination was performed under the ASA standard, the results after conversion to the ISO-ANSI standard are as follows, are as follows: 25 (500); 20 (1000); 20 (2000); 25 (3000); 20 (4000). The results show normal hearing, regardless of the standard used, and he was assigned a '1' for his hearing profile. The Veteran's National Guard records also show normal hearing and that the Veteran denied hearing loss. In October 1985, the Veteran denied hearing loss and ear trouble on his report of medical history. The October 1985 audiogram showed his right ear hearing thresholds were as follows: 30 (500); 20 (1000); 10 (2000); 0 (3000); 10 (4000). His left ear hearing thresholds were as follows: 30 (500); 20 (1000); 15 (2000); 5 (3000); 10 (4000). He was assigned a '1' for his hearing profile. In March 1990, on his retention report of medical history, he denied hearing loss and ear trouble. The March 1990 audiogram showed his right ear hearing thresholds were as follows: 15 (500); 10 (1000); 5 (2000); 5 (3000); 5 (4000). His left ear hearing thresholds were as follows: 20 (500); 10 (1000); 10 (2000); 30 (3000); 15 (4000). Thus, the Veteran had normal hearing and no complaints of hearing loss or ear issues as of March 1990. The record does not show treatment for or complaints of hearing loss until May 2007, when the Veteran initially sought service connection for hearing loss and tinnitus. In October 2014, he established care at VA and reported that he had experienced difficulty hearing in his right ear and tinnitus "for years." He did not specify when his conditions onset nor that they began in service. During the period on appeal, he was afforded a VA examination in June 2015. In June 2015, the Veteran reported that he worked with Goodyear for 41 years and was required to wearing hearing protection. He also reported that he used to hunt. Regarding his tinnitus, he reported it had been present for a "couple of years." The Board only considered the reports made by the Veteran in the examination and did not rely on the medical opinion issued by the June 2015 examiner. After reviewing the evidence, to include the Veteran's lay statements, the Board finds that the Veteran's hearing loss and tinnitus are not entitled to presumptive service connection. As demonstrated by the service and National Guard audiograms, he did not have chronic hearing loss in service or within one year after service. Regarding continuity of symptomatology, the Board considered the Veteran's testimony that he was told by his employer in 1971 that he had hearing loss and he noticed hearing loss and tinnitus in the late 1970s/early 1980s, but finds that this testimony is not persuasive evidence. The Veteran had normal hearing at audiograms in 1985 and 1990 and he explicitly denied hearing loss and ear trouble on his reports of medical history at those times. Additionally, he testified that he did not know when his tinnitus began, and he reported in the June 2015 examination that his tinnitus onset only a few years before. Thus, the Board does not find his testimony probative evidence his conditions began in 1971 or the 1970s/1980s. In short, the Board finds that the weight of the evidence shows that symptoms were not chronic in active service, did not onset within one year after active duty service, and there was no continuity of symptomatology from active duty service to diagnosis, and presumptive service connection is not warranted. That does not end the inquiry. Service connection can still be granted on a direct basis for a disability that begins after service if it is related to an in-service disease or injury. The Board finds, however, that the evidence does not demonstrate that his hearing loss or tinnitus is related to the in-service noise exposure. In addition to the Veteran's service records, National Guard records, and lay statements, the Board also relied on the April 2021 and December 2021 VA medical opinions. After review of the record, the April 2021 VA examiner opined that it was less likely than not that the Veteran's hearing loss was related to service. The examiner noted that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty, regardless of the standard used. She addressed the Veteran's 1985 audiogram and noted that 30 decibels at 500 Hz is not consistent with injury from noise exposure. She also concluded this mild hearing loss was observed to be transient as the 1990 audiogram showed normal hearing in all frequencies relevant for VA compensation. The Board notes that, while the examiner used the term "hearing loss," the 1985 and 1990 audiograms showed normal hearing levels for VA compensation purposes. The examiner also noted that the Veteran did not complain of hearing loss or ear issues in service or at separation from active duty. After citing relevant literature and the Veteran's records, the examiner concluded that it was less likely his hearing loss was related to military noise exposure. Relying on similar evidence, the Veteran's reports of onset made during the June 2015 examination and Board hearing, and literature regarding delayed manifestation of tinnitus, the examiner concluded the Veteran's tinnitus was less likely than not related to service. Regarding tinnitus, the examiner relied on above rationale and concluded that the Veteran's tinnitus was less likely than not caused by military noise exposure and instead is a symptom associated with his hearing loss. The RO requested addendum medical opinions from the same examiner in December 2021 although the April 2021 medical opinions were adequate. In her opinion regarding hearing loss, she noted that even if ASA correction factors were applied to both examinations, the results reveal a 15-decibel shift at 500 Hz in the left ear only at separation. She also noted that while the thresholds at 500 Hz and 3000 Hz would be "considered a hearing loss," the shift was only a 10-decibel shift which is consistent with test-retest reliability. She stated that a 15-decibel shift at 500 Hz in one ear is not consistent with hearing loss from noise exposure in isolation. Based on the anatomy of the ear, it would be impossible for only 500 Hz to be affected from noise in one ear. Thus, that shift does not demonstrate evidence of a noise injury. The Board notes, again, that the Veteran's service audiogram results do not show hearing loss for VA compensation purposes regardless of the terminology used by the examiner. Finally, the Board considered the Veteran's contentions. The Board acknowledges that normal hearing levels at separation from service does not mean hearing loss cannot be related to service, and acknowledges he was exposed to acoustic trauma in service. The Board finds, however, that the wealth of medical evidence above is more probative in assessing the etiology of his hearing loss and tinnitus. The Board also considered the Veteran's testimony that he was told by his employer in 1971 that he had hearing loss but finds that this testimony is not probative evidence of hearing loss. The Veteran had normal hearing at audiograms in 1985 and 1990 and he explicitly denied hearing loss and ear trouble on his reports of medical history at those times. Thus, the Board does not find his testimony that he had hearing loss in the early 1970s to be persuasive as it is contradicted by these audiograms and by the statements he made at those times. After reviewing the lay and medical evidence, the Board finds that the Veteran's hearing loss and tinnitus are not related to his in-service noise exposure. In particular, the Board found the service treatment records, which showed normal hearing at separation and no significant threshold shifts, the National Guard records, which showed normal hearing, his reports of medical history in which he denied hearing loss and ear trouble, and the April 2021 and December 2021 opinions to be especially probative. Accordingly, the Board finds that the Veteran's hearing loss and tinnitus are not related to service, and the claims for service connection are denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.