Citation Nr: 22017566 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-36 228 DATE: March 25, 2022 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was not manifested in service and the evidence is against a finding that his bilateral hearing loss disability is related to his service or to a disease, event, or injury therein. 2. The Veteran's tinnitus was not manifested in service and the evidence is against a finding that the Veteran's tinnitus is related to his service or to a disease, event, or injury therein. CONCLUSIONS OF LAW 1. The criteria are not met for service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria are not met for service connection for tinnitus. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). In April 2018, the Veteran disagreed with the March 2018 rating decision. In May 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). In June 2021, the matters were remanded to obtain addendum opinions to determine whether the Veteran's hearing loss and tinnitus were related to service. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). An alternative method of establishing the second and third elements of service connection is through a demonstration of continuity of symptoms (for qualifying disabilities listed as "chronic" in the regulation). 38 C.F.R. §§ 3.303(b), § 3.309(a). Bilateral hearing loss and tinnitus are both qualifying chronic diseases For VA purposes, impaired hearing is considered disabling when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 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. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). To establish service connection, the Veteran is not obliged to show that hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish the causal link between the current disability and the in-service injury. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). VA must consider statements made by the Veteran or those with knowledge of the Veteran's disability, provided they are discussing things they are qualified to address. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that laypersons are qualified to report observable symptoms and medical events but not to provide medical opinions about complex medical questions). 1. Service connection for bilateral hearing Factual Background The Veteran did not have hearing loss before joining the military. The Veteran's entrance and separation examinations from the military did not show evidence of hearing loss. Service treatment records from September 1968 show that the Veteran was hospitalized during service for a right ear issue. The Veteran reported at his Board hearing that he believed this was following exposure to a loud noise, "probably at the gun range." A medical note from the Veteran's hospitalization showed that upon examination the Veteran was found to have normal hearing. At a March 2018 VA examination, the Veteran was diagnosed with mixed hearing loss as well as tinnitus. During that examination, the Veteran reported that he had ear surgery in 1980. A March 2018 rating decision denied the claims and the Veteran timely disagreed and appealed to the Board. During his May 2021 hearing before the Board, the Veteran testified that, by the time he got out of the military in 1969, he had already begun to notice observable symptoms of hearing loss and tinnitus. The Veteran attributed his hearing loss to being exposed to loud noises such as the gun range during basic training. He also attributed his hearing loss to his military operational specialty (MOS). The Veteran stated that he had worn communication system headsets for 8-12 hours a day, during which time he would hear loud static, without hearing protection. The Veteran also testified that he experienced temporary hearing loss after being exposed to a loud noise at a gun range. The Veteran stated that he was hospitalized in September 1968 due to a right ear issue. He also testified that he believed it was some time after his hospitalization that a military doctor told him that he had tinnitus and hearing loss. The Veteran stated he could not recall with certainty when he was told this. He also testified that he believed his hearing loss and tinnitus began while he was in the military because he could not think of anything else that might have caused these medical conditions. When asked whether he had issues with his ears following service, the Veteran testified that, in 2005 or 2006, his primary doctor noticed an issue with one of his ears and thus referred him to an ear, nose, and throat specialist (ENT). The ENT noticed that the Veteran had a scar in one of his ears. The ENT indicated that the scar was associated with an injury that took place around 1980. The Veteran testified that around 1980 he began experiencing dizziness and that after that he was diagnosed with vertigo. The Veteran also testified that after his vertigo began to affect his everyday life, he sought medical attention. In seeking this medical attention an ENT told the Veteran that he had fluid leaking into his middle ear and would need surgery. The Veteran reported that, after the surgery, he no longer had issues with vertigo. In addition to associating the Veteran's vertigo to the 1980 incident, the Veteran also testified that the ENT suggested there might be a possibility that his MOS might have caused his vertigo. A June 2021 Board decision remanded the claims for addendum opinions to determine whether the Veteran's bilateral hearing loss and tinnitus might be either directly related to active military service, including acoustic trauma and noise exposure, or whether they might represent initial manifestations of these conditions. The examiner was specifically asked to answer how the Veteran's 1980s ear surgery related to the question of causal linkage and whether this ear surgery might be evidence of acoustic trauma during active service. In June 2021, the VA examiner conducting the addendum examination noted that the Veteran was exposed to noise while in the military but, nevertheless, opined that it was less likely than that the Veteran's hearing loss was either incurred in service or caused by any in-service injury or disability. First, the examiner noted that between the veteran's entrance into service and separation from service, there was a lack of a permanent threshold shift showing permanent hearing loss. Additionally, the examiner noted that the Veteran did not report hearing loss within a year after separation. Because of this, the examiner said that auditory damage and hearing loss could not be conceded based on military noise alone. Regarding the Veteran's 1980 ear surgery the examiner stated that during a 2018 VA examination the Veteran had stated that he had ear surgery in 1980. The examiner then stated that there was no elaboration as to what the surgery was for. Nonetheless, the examiner stated that noise would not have been the reason for his later-onset hearing loss. The examiner explained that during the Veteran's 2018 VA examination he was found to have mixed loss hearing as well as middle ear dysfunction. The examiner then stated that to determine hearing loss a patient must undergo both air conduction and bone conduction tests. These tests are used for different reasons and have different results. Addressing the Veteran's hearing loss the examiner explained that the Veteran's bone conduction results which is the test used to indicate the "sensorineural component of hearing loss showed better results than his air conduction test results. The examiner explained that the bone conduction test is the test that is used to determine hearing loss due to noise exposure The examiner explained that air conduction tests are done to show "sound passing through the ear canal, eardrum middle ear space and then to the nerve. The examiner also stated that when considering hearing loss from noise exposure, the bone conduction is the test that is used. The examiner explained that this is because noise damages the nerve, not the outer and middle ear space. The examiner also stated that an exception would occur had the Veteran has been exposed to a blast that perforated the eardrum. The examiner also stated that When comparing the bone conduction results to the separation exam, a shift was noted, however, the Veteran's hearing was normal at separation, which would indicate that noise would not have been the reason for later onset hearing loss. Analysis While the Veteran has bilateral hearing loss, which can be a chronic disease under 38 C.F.R. § 3.309 (a) (as sensorineural hearing loss), it was not shown as chronic in service or within the one-year presumptive period, did not manifest to a compensable degree within the presumptive period and was not noted in service with attributable continuity of symptoms. While the Veteran's service treatment records show that he was hospitalized in September 1968 due to an issue with his right ear that included a report of hearing loss, an examination note accompanying that entry specifically notes that the Veteran's hearing was found to be normal. Additionally, the Veteran's hearing was found to be within normal limits on his separation examination. The first time the Veteran was found to have hearing loss was in 2018, which is well past the presumptive period, thus, service connection on a presumptive basis is not warranted here. Service connection for hearing loss may still be granted on a direct basis. However, in this case, the weight of the evidence is against finding that a medical causal link exists between the Veteran's bilateral hearing loss and in-service noise exposure. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board is satisfied that the June 2021 VA examiner's opinion is adequate for deciding this claim. The examiner's medical opinion is supported by a thorough rationale, particularly the fact that the Veteran's bone conduction test results show that the Veteran's current hearing loss is not consistent with a noise induced hearing loss during service. Additionally, while the lack of a permanent threshold shift during service cannot be the sole basis for a negative nexus opinion, that fact is entitled to some limited probative weight. The Board has considered the Veteran's lay statements stating that noise exposure during service caused his current bilateral hearing loss Additionally, the Board also acknowledges that the Veteran testified that he was told he had hearing loss sometime during active duty service. However, all of the Veteran's hearing tests including the one following his hospitalization showed normal hearing. For VA purposes. While the Board is sympathetic to the Veteran's contentions, he is not competent (medically qualified) to provide a causal link (nexus) opinion in this case, which involves a medically complex question (because there may be multiple possible causes of hearing loss, including genetics and aging, that are not observable factors). Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, under the facts of this case, the Board must give more probative weight to the medical evidence. The Board is grateful to the Veteran for his honorable service and regrets that, by law, a more favorable decision is not available given the evidence of record. 2. Service connection for tinnitus Factual background The June 2021 VA examiner also provided an addendum opinion regarding the Veteran's tinnitus. During his March 2018 VA examination, the Veteran told the examiner that he began having ringing in his ears in 2005 and that he was unsure of how the ringing started. During the same 2018 examination, the Veteran further reported that his tinnitus began over 40 years after he left the military. In the Veteran's June 2021 addendum medical opinion for tinnitus, the Veteran once again told the examiner that his tinnitus began almost 4 decades after he left the military. After noting the Veteran's medical history regarding the timeline of his tinnitus, the examiner opined that the is was less likely than not, that the Veteran's tinnitus was caused by his time in the military. The examiner stated that he saw no report of tinnitus within the Veteran's military records or other medical records up until the Veteran made a claim. The examiner conceded the fact that based on the Veteran's MOS, he was exposed to a moderate degree of noise. The examiner then stated that tinnitus and hearing loss often have similar causes and that one can cause the other, but that, that is not always the case. The examiner also stated that current medical literature does not support late onset noise-induced tinnitus. In more detail, the examiner cited a piece of medical literature that said that, as the time between noise exposure and a diagnosis of tinnitus gets longer, the possibility that tinnitus is caused by other factors gets greater. Because of this, the examiner opined that it was less likely than not the Veteran's tinnitus was related to his service. Analysis While the Veteran has a diagnosis of tinnitus and in-service noise exposure has been established, the Board finds that there is no causal link between tinnitus and the in-service noise exposure. The Board acknowledges that, during his hearing before the Board in May 2021, the Veteran testified that he thinks he was told he had tinnitus while still on active duty but that he does not remember exact dates. This would suggest a potential continuity of symptoms. However, a review of the record reveals a conflict with the Veteran's testimony. During his March 2018 VA examination, the Veteran told the examiner that he began having ringing in his ears in 2005 and that he was unsure of how the ringing started. Likewise, during his 2021 addendum examination, the Veteran once again told the examiner that his tinnitus began in 2006. In addition, the Veteran's in-service treatment records also do not support a finding that the Veteran had tinnitus during service other than the three days of tinnitus that he reported during his Board hearing. During the Veteran's September 1968 hospitalization, he specifically reported a loss of hearing, in his right ear, however, he did not indicate that he had any ringing in his ears. The Board does not question the Veteran's hearing testimony that he had tinnitus for a few days during service but, as to whether it was an acute episode that resolved before separation, the Board must rely on the contemporaneous 1969 separation examination, at which the report of medical examination showed that the Veteran's ears were normal. Concerning the Veteran's assertion that he had continuity of symptoms after being told he had tinnitus in service, the Board must assign less probative weight to his May 2021 testimony, over his reports of medical history during his two VA examinations. The report from his separation examination shows that the Veteran reported normal hearing (that is, without interference from tinnitus) at that time. Finally, during two VA examinations, the Veteran told his examiners that his tinnitus began about 40 years after he left the military. In fact, during his 2018 VA examination, the Veteran told the examiner that he did not hear ringing in his ears until 2005. Because of all of the above, the Board must assign more probative weight to the two VA examinations over his testimony before the Board. The Veteran's reports of medical history during his two VA examinations are not only consistent with one another, but also provide a more definitive date from the Veteran as to when he began to have tinnitus. Given that the above, the Board finds that service connection is not warranted for tinnitus based on continuity of symptoms. Service connection for tinnitus may still be granted on a direct basis even if continuous symptoms are not shown. However, in this case, the evidence weighs against finding that a medical nexus (causal link) exists between the Veteran's tinnitus and in-service noise exposure. In this case, the evidence indicates that there is a post-service superseding cause, specifically, the Veteran's post-service injury in 1980. It was only after that 1980 incident that the Veteran began to feel dizzy and was diagnosed with vertigo, after which he was required to undergo surgery. The Board is aware that the Veteran stated that an ENT told him that it was a "possibility" that his vertigo may be related to events that happened to him in service. The problem with this is that the word "possibility" is speculative at best, especially considering the fact that the Veteran testified that the ENT definitely associated the Veteran's ear scar to his 1980 injury. This, combined with the fact that the Veteran told two VA examiners that his current tinnitus began approximately 40 years after service, means that the Board must assign less probative weight to the Veteran's belief that his ear issues are related to his time in the service. The Board is grateful to the Veteran for his honorable service and regrets that, by law, a more favorable decision is not available given the evidence of record. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mintz, Allison 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.