Citation Nr: 22018589 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 20-27 137 DATE: March 29, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. A bilateral hearing loss disorder was not manifest during service and an organic disease of the nervous system (sensorineural loss) was not manifest within one year of separation. A bilateral hearing loss disability is unrelated to service. 2. Tinnitus is related to noise exposure during wartime service. CONCLUSIONS OF LAW 1. A bilateral hearing loss disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Tinnitus was incurred in wartime service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to February 1971. SERVICE CONNECTION Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, 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." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 1. Entitlement to service connection for bilateral hearing loss Relevant here, sensorineural hearing loss is identified as a "chronic disease" under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a). "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). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id. at 159. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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, 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. With regards to the element of disability, the Veteran states he has both hearing loss and tinnitus. Medical examinations from the affirm that he has a bilateral hearing loss disorder as well as tinnitus. The Veteran has argued that hazardous noise exposure during service caused his bilateral hearing loss and tinnitus. The Veteran reported the use of heavy machinery such as forklifts, that were very loud and speculates that damaged his hearing. He also reported an incident during basis training when a grenade exploded in close proximity. He also reported that while serving in Vietnam his post was very close to a radio tower that was the target of bombing. The Board concludes that at controversy is the nexus of the Veteran's hearing disorders. With regards to nexus, the Veteran argues that he was exposed to hazardous noise during service which caused his hearing loss and tinnitus. He has also submitted a favorable medical opinion regarding the nexus of his hearing loss. At a January 1968 entrance examination, all systems, including ears and drums, were clinically evaluated as normal. Audiometric testing had the following results for the Veteran: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 X 15 LEFT 0 0 0 X 0 At a December 1970 separation examination, all systems, including ears and drums, were clinically evaluated as normal. Audiometric testing had the following results for the Veteran: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 X 10 LEFT 10 10 10 X 10 Additional service treatment records do not document any relevant treatment, complaints, symptoms, or diagnoses specific to bilateral hearing loss. The medical evidence first documents bilateral hearing loss in approximately May 2010approximately 39 years after separation from service. A June 2002 medical record indicated that the Veteran's hearing was "grossly intact." However, at a July 2010 examination, the Veteran indicated that he was having hearing difficulty. The examiner wrote that "He has hearing loss and ringing in his ears and he has had that since has been in the military, but it has gradually gotten worse." In August 2010, the Veteran reported that he had noticed hearing loss for the past 8 yearsthat is, starting approximately 31 years after separation from service. Medical records after this point continue to indicate that the Veteran was reporting hearing loss. In CAPRI records, dated January 17, 2018, the Veteran indicated on two separate occasions (July 2012 and April 2015) that his hearing was decreasing. The Veteran was afforded a VA examination in October 2018. The VA examiner submitted audiometric testing with the following results: HERTZ CNC 500 1000 2000 3000 4000 RIGHT 30 30 55 65 80 96% LEFT 30 20 50 60 75 92% The October 2018 VA examiner, after reviewing the record, found that the Veteran's bilateral hearing loss was less likely than not directly related to service. The examiner wrote, "There is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation. Although Veteran reported exposure to heavy equipment noise, MOS is not indicated as high probability for hazardous noise exposure during [service]. There is no report of complaint/treatment for hearing decrease in [service treatment records] or at separation. Therefore it is less likely than not related to service." In an addendum opinion from April 2020, the VA examiner affirmed the previous finding. The examiner wrote that "[The Veteran's] MOS was Equip Storage Specialist which had a low probability of hazardous noise exposure. The Veteran's DD214 is positive for VCM and VSM which verifies service in Vietnam and concedes noise exposure. The Veteran's entrance hearing exam from 1/2/1968 was within normal limits. The Veteran's separation hearing exam from 12/15/1970 was also within normal limits with no significant permanent positive threshold shifts noted (ASA to ANSI correction values applied to entrance due to date of exam). The Veteran attended a 10/18/2011 audio C&P evaluation where a mild sloping to moderate/severe SNHL was noted. The Veteran informed the examiner that he was exposed to noise in service from heavy equipment, rifles and all kinds of shells. A negative opinion for hearing loss was given citing normal entrance and separation exams with no significant threshold shifts noted. The Veteran attended a 10/4/2018 Audio C&P where a similar hearing loss was shown (compared to 2011 results)..." The examiner also wrote that "[w]ith regard to the Veteran's claim of hearing loss, it is less likely than not the result of hazardous noise exposure on active duty. The Veteran's entrance hearing exam was within normal limits. The Veteran's separation hearing exam was also within normal limits with no significant threshold shifts noted. Although the Veteran's MOS had a low probability of hazardous noise exposure, lay testimony as well as service in Vietnam concedes noise exposure. A nexus cannot be established on noise exposure alone. A recent publication from the American College of Occupational and Environmental medicine states that 'previously noise exposed ears are not more sensitive to future noise exposure (2018).' They also go on to state: 'There is insufficient evidence to conclude that hearing loss due to noise will progress once the noise exposure is discontinued. This is primarily based on a National Institute of Medicine report which concluded that, on the basis of available human and animal data, it was felt unlikely that such delayed effects occur (2018).' A nexus is not established for hearing loss as it relates to hazardous noise exposure on active duty. The objective evidence is against a nexus in this case, therefore it is less likely than not that the Veteran's current hearing loss is the result of hazardous noise exposure on active duty. The Veteran also submitted a private examination from September 2018. The private examiner wrote that "Hx of military and industrial noise exposure. [Patient] reports Hx of running articulated fork lifts when in Vietnam as well as being exposed to ammunition firing, air planes, etc., as well as being in close proximity of grenade exploding during basic training. Although it is likely that post military noise could have contributed to his hearing loss, I feel certain that noise exposure in the military has contributed to his hearing loss as well." The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the October 2018 and April 2020 VA medical opinions that the Veteran's bilateral hearing loss is less likely than not related to service as probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran's pertinent history and provided a reasoned analysis of the case. To the extent that any errors or omissions regarding the Veteran's noise exposure in service were present in the October 2018 examination, they were cured by the examiner's acknowledgement of noise exposure in service in the April 2020 addendum opinion. Conversely, the Board finds minimal probative value in the September 2018 opinion. The Board notes that the examiner did not indicate how much of the Veteran's medical record they had reviewed. The Board also notes that the standard the examiner gave of "contribution to hearing loss" is not one that indicates whether the Veteran's hearing loss was more likely than not related to service. Finally, the Board finds a lack of rationale in that opinion. The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether and the extent to which they reviewed prior clinical records and other evidence. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. After reviewing all opinions, the Board provides more weight to the October 2018 and April 2020 addendum, due to its review of the Veteran's history and supporting rationale. The Board has considered the lay statements of the Veteran regarding his bilateral hearing loss. The Veteran is competent to provide evidence of what he experiences, including his symptomatology and medical history. The Veteran is competent to report what he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find his statements to be as probative as the VA examiner's opinion, which was based on extensive review of the record, thorough examination, consideration of the lay statements, and the VA examiner's medical expertise. Notably, the Veteran has not indicated that a medical professional provided him with a diagnosis of bilateral hearing loss during active service, or within a year of separation. The Veteran separated from active service in February 1971. Hearing loss was not noted during service. The Veteran did not have characteristic manifestations sufficient to identify the disease entity. 38 C.F.R. § 3.303(b). Objective medical testing did not document a hearing loss disability until at the earliest thirty-nine years after separation. Here, there is no competent evidence of hearing loss or hearing loss disability during service or within one year of separation. The private medical opinion is of little probative weight as there is no rationale explaining a remote onset when the in-service findings were normal. Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to service connection for hearing loss. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and service connection for hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to service connection for tinnitus Regarding tinnitus, at both the Veteran's January 1968 entrance examination and December 1970 separation examination, all systems, including ears and drums, were clinically evaluated as normal. Additional service treatment records do not document any relevant treatment, complaints, symptoms, or diagnoses specific to tinnitus. The Veteran's tinnitus was first documented in May 2010. A June 2002 medical record indicated that the Veteran's hearing was "grossly intact." However, at a July 2010 examination, the Veteran indicated that he was having hearing difficulty. The examiner wrote that "He has hearing loss and ringing in his ears and he has had that since has been in the military, but it as has gradually gotten worse." The Board interprets the examiner's comment as stating that the Veteran was having trouble with his tinnitus since service. In August 2010, the Veteran reported tinnitus. Medical records after this point continue to indicate that the Veteran continued to report tinnitus, such as in October 2011 and October 2013. However, during his November 2014 examination, the Veteran was recorded denying having tinnitus. The Board also notes that in October 2011, the Veteran was not sure when tinnitus first started, but stated that he had been experiencing it for at least 10 years. The Veteran was afforded a VA examination in October 2018. The VA examiner found that the tinnitus was less likely than not related to service. The examiner noted that the Veteran was unsure of when his tinnitus started. The examiner noted that tinnitus was not noted in the Veteran's service treatment records, his hearing threshold did not change significantly, and his MOS was negative for a high probability of noise exposure. In an April 2020 addendum, the VA examiner wrote that "With regard to the Veteran's claim of tinnitus, it is less likely than not associated with noise exposure on active duty. The Veteran states at his 2011 C&P evaluation that the onset of his tinnitus was around ten years prior to his exam. The Veteran at his 2018 C&P evaluation is unable to state a time frame for onset. The Veteran denies tinnitus at a VA audio appointment on 11/25/14. Although the idea of delayed onset tinnitus is supported by some research out there, it is currently not widely accepted. Per Humes 'As the interval between the exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. A more complete understanding of the mechanisms by which tinnitus is generated will be needed for the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected (2005).' Given that the Veteran states the earliest onset would have been late 1990's early 2000's (although the 2014 denial negates that) this would put onset of Veteran's tinnitus nearly 30 years after separation. A nexus is not established for tinnitus related to noise exposure on active duty." After review, the Board finds the October 2018 and April 2020 opinions hold minimal probative value with respect to the Veteran's claim for tinnitus. The Board notes that the examiner did not discuss the Veteran's statement in his July 2010 examination that he had tinnitus ever since service ended. The Board finds that the examiner incorrectly assessed the Veteran's statements from October 2011; the Veteran did not say he had been experiencing tinnitus for ten years but that he had been experiencing it for at least ten years. Further, unlike hearing loss, which can be experienced at levels below VA's threshold for legally cognizable hearing loss, tinnitus at any level is subject to service connection. Tinnitus is an organic disease of the nervous system and is therefore considered a chronic disease for VA purposes. Fountain v. McDonald, 27 Vet. App. 258, 27172 (2015). The Veteran has reported that he currently has tinnitus, which he is competent to identify. Further, the Veteran has credibly reported that his tinnitus both began in service and has been persistent since. We note that, outside of the November 2014 report, he has consistently reported that tinnitus has been present for at least ten years. There is no other that the Veteran's statements to this effect are not credible, and he is competent to report both the onset date of a wholly lay-observable disability as well as its persistency since that date. As such, these statements are entitled to significant probative weight. (Continued on the next page) While service treatment records do not document tinnitus, when considering the VA medical opinion of record and lay statements from the Veteran, the weight of the evidence indicates that the Veteran's tinnitus is related to his active service. The claim is granted. The Board finds that tinnitus manifested during wartime service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, Associate 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.