Citation Nr: 22017254 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-03 715 DATE: March 24, 2022 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran's tinnitus did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran's left ear hearing loss did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1969. The Veteran testified at a July 2021 Board of Veterans' Appeals (Board) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board remanded this appeal in September 2021 for further development. It now returns for further appellate review. Service Connection 1. Tinnitus 2. Bilateral Hearing Loss The Veteran seeks service connection for bilateral tinnitus and left ear hearing loss. See October 2014 VA Form 21-526EZ, Fully Developed Claim. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection for certain chronic diseases, including tinnitus and hearing, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical, or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303 (b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of the chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Walker at 1336; 38 C.F.R. § 3.303(b). Relevant Facts and Analysis The Veteran has a current diagnosis of tinnitus. See February 2015 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). The Veteran was also diagnosed with left ear sensorineural hearing loss. Id. Thus, the first element of service connection, a current disability, has been established for tinnitus and left ear hearing loss. Regarding, the second element of service connection, an in-service injury or illness, the Veteran testifies that while serving in Vietnam, rockets and mortars went off every night for six to eight weeks. See Hearing Transcript. He also stated that "[a]fter, almost each one of those attacks, my ears would ring for maybe a couple of hours." Id. He also was exposed to loud noises while working as an aircraft electrician. Thus, based on the Veteran's competent and credible statements of in-service noise exposure, the second element of service connection has been satisfied. The question for the Board is whether the Veteran's tinnitus and left ear hearing loss began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus and left ear hearing loss, and evidence shows that the Veteran was exposed to hazardous noise during active service, the evidence weighs against finding that the Veteran's diagnosis of tinnitus and left ear hearing loss began during service or is otherwise related to an in-service injury, event, or disease, as the third prong of service connection, the nexus has not been substantiated. 3 8 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d). Presumptive Service Connection Notably, the Veteran's service treatment records (STRs) are silent for complaints or treatment of tinnitus or hearing loss. More specifically, during the September 1969 separation examination, the Veteran denied any ear trouble or hearing loss. In fact, at separation in his Report of Medical History, while he checked "YES" for other concerns, he checked "NO" for "EAR, NOSE OR THROAT TROUBLE," "RUNNING EARS," AND "HEARING LOSS." See September 1969 Report of Medical History, in STR-Medical. The Board finds this evidence probative as it was reported contemporaneous with when the Veteran separated. The Board notes that the Veteran testified he sought medical treatment in 1970 for ringing in his ears and was diagnosed with Meniere's disease. During a March 2015 new patient visit, the Veteran also reported that he complained of severe recurrent vertigo in the 1970s to a private physician and was diagnosed with Meniere's disease. See March 2015 Private Treatment Records from Dr. K.B. However, the earliest post-service treatment records in the claims file are from March 2015. As such, the evidence weighs against finding that the Veteran had tinnitus and left ear hearing loss during service, as he expressly denied any hearing problems during the September 1969 separation examination and his STRs are silent for complaint of tinnitus and hearing loss. The Veteran was first diagnosed with tinnitus and left ear hearing loss during the March 2015 private audiological evaluation. See March 2015 Private Treatment Records from Dr. K.B. As the Veteran was not diagnosed with tinnitus and left ear hearing loss within one year of discharge from active service, the presumptions 38 U.S.C. §§ 1112, 1113, 1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply. As such, the claims are denied on a presumptive basis. Direct Service Connection Turning to direct service connection, the claims file includes opinions for and against the claims. The February 2015 VA examiner opined that the Veteran's tinnitus was less likely than not related to the Veteran's military noise exposure. See February 2015 VA Hearing Loss and Tinnitus DBQ. Similarly, the examiner opined that the Veteran's left ear hearing loss was not related to active service because the Veteran had normal hearing at separation and there was no significant threshold shift during service. Id. In his rationale, the examiner states that the Veteran denied ear problems at separation, and that the Veteran reported his tinnitus began in late 1970s which was related to Meniere's disease. He further states that the findings of normal hearing "and no significant threshold shift at the time of separation indicates no significant acoustic trauma in the military." Id. The examiner also notes in his remarks that the Veteran worked in a refinery for more than 30 years with the first seven years in a noisy environment following active service. The Board remanded the claim for an addendum medical opinion to ensure that the Veteran's lay statements were addressed. The November 2021 VA examiner opined that the Veteran's tinnitus and hearing loss were less likely than not related to active service. See November 2021 VA Medical Opinion DBQ. In her rationale, the examiner states that the Veteran's service records were silent for tinnitus and hearing loss and that his tinnitus began in the early 1970s which was post service. To support her conclusion, the examiner also notes 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 from conceded noise." She also states there was no complaint or treatment for hearing decrease in the Veteran's STRs or at separation. The examiner also states in her opinion that the Veteran had other likely causes of hearing including age-related as well as "civilian h/o occupational noise exposure with some exposure without hearing protection." Id. She also asserts that "auditory damage and hearing loss are not conceded on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology." Finally, the examiner opines that hearing loss and tinnitus are not presumptive conditions for exposure to Agent Orange herbicide and that "there is no competent medical opinion that relates either hearing loss or tinnitus to Agent Orange exposure." The Board affords significant probative weight to the November 2021 VA medical opinion as it was based on an examination of the Veteran, and the opinion considered an accurate history, was definitive and was supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). On the other hand, the Veteran's private audiologist provided a nexus opinion in March 2015. See March 2015 Private Treatment Records from Dr. K.B. Dr. K.B. opines that the Veteran has sensorineural hearing loss "pathognomic for noise induced hearing loss." Id. He further notes that the Veteran had a long history of "noise exposure being a plane mechanic while in the Army." Id. He also notes that the Veteran worked in a loud factory after active service. Id. The Board affords less weight to the Dr. K.B.'s opinion because while this opinion provides evidence that the Veteran's hearing loss is noise induced, it does not substantiate that the Veteran's in-service noise exposure caused his current hearing loss and tinnitus. Dr. K.B. did not expressly state that the Veteran's in-service noise exposure caused his current hearing loss and tinnitus. As such, the Board finds that the opinion is speculative especially in light of the Veteran's exposure to loud noises in his post service employment in a refinery. See Bloom v. West, 12 Vet. App. 185, 186-187 (1999) (treating physician's opinion that service "could have" precipitated a disability found too speculative) In deciding the claims, the Board considered the lay statements from the Veteran including during his testimony and buddy statements from R.P., S.C., and B.P. The Board finds that the Veteran and his fellow servicemembers are competent and credible to report experiencing symptoms and regarding information of which they have first-hand knowledge. For instance, Mr. B.P. stated that he served in Vietnam with the Veteran and that their unit (219th RAC) was exposed to mortar attacks. "Many Veterans from the 219th have experienced hearing loss as a result of the conditions." See July 2021 Buddy/ Lay Statement from Mr. B.P. The Board finds these statements are credible evidence of in-service noise exposure. Notably, VA has already conceded that the Veteran has been exposed to military noise exposure. However, regarding the etiology of his tinnitus and left ear hearing loss, the Veteran and his fellow servicemembers have not shown they possesses the medical expertise to provide a medical opinion and the medical evidence of record outweighs these lay statements regarding the cause of his tinnitus and hearing loss. See Jandreau v. Nicholson, 492 F.3d 1377 n.4. To the extent these lay statements from the Veteran and his fellow servicemembers are offered for the premise that the Veteran should be granted service connection, the Board finds that the laypersons have not provided sufficient medical expertise to render etiology opinions. Additionally, Board decisions are non-precedential and are not binding on subsequent Board decisions. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. See 38 C.F.R. § 20.1303. Thus, the lay statements regarding the etiology of the Veteran's hearing loss and tinnitus are considered of little probative value. Alternatively, the nexus can be established based on continuity of symptomatology. During the February 2015 VA examination, the Veteran reports his tinnitus began in the late 1970s when he was diagnosed with Meniere's disease. See February 2015 VA Hearing Loss and Tinnitus DBQ. Additionally, the earliest evidence of hearing loss diagnosis in the claims file is from March 2015. See March 2015 Private Treatment Records from Dr. K.B. At the July 2021 Board hearing, the Veteran testifies that he saw a private physician for complaint of ringing in his ears in early 1970, following separation from service in 1969. See Hearing Transcript. Unfortunately, none of these statements reflect that the Veteran has experienced continuity of symptomology of tinnitus or hearing loss since service or that he had a diagnosis within one year of his discharge. Accordingly, the probative evidence weighs against a finding of continuity of symptomology for tinnitus and left ear hearing from the time of discharge to the present. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. While the Board is sympathetic to the Veteran's claims, taking into account all of the relevant evidence of record, the weight of the evidence is against a finding of an etiological relationship between the Veteran's current left ear hearing loss and tinnitus and his active service. Accordingly, the Board finds that the claims of entitlement to service connection for left ear hearing loss and tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.