Citation Nr: 22019906 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-32 685 DATE: April 3, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within one year of service, continuity of symptomatology is not established, and it is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran's tinnitus was not shown as chronic in service and did not manifest to a compensable degree within one year of service, continuity of symptomatology is not established, and it is not otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 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. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1983 to May 1985. These matters come to the Board of Veterans' Appeals (the Board) following a December 2015 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for both bilateral hearing loss and tinnitus. The Veteran's appeal was previously before the Board in September 2021 when it was remanded to obtain a new Department of Veterans Affairs (VA) medical opinion. The AOJ completed the directed development in September 2021, and the matters have now returned to the Board for adjudication. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. Entitlement to service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for an injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Sensorineural hearing loss and tinnitus qualify as chronic diseases, as they are considered organic diseases of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 266 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the claimed disability qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). As sensorineural hearing loss and tinnitus are chronic diseases, service connection via the demonstration of continuity of symptomatology is applicable. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to in-service noise exposure from loud teletype machines. The question for the Board is whether the Veteran has a current disability that began during service and has been continuous since then or that is at least as likely as not related to an in-service injury, event, or disease. Here, the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, thus fulfilling the first element of service connection. Shedden, 381 F.3d at 1166-67. Furthermore, the Veteran's military personnel records indicate that his military occupational specialty (MOS) was telecommunications operations chief. This MOS had a moderate probability of hazardous noise exposure. As such, the second Shedden elementan in-service eventhas been met. 381 F.3d at 1166-67. While the evidence shows that the Veteran has a diagnosis of bilateral hearing loss and experienced in-service noise exposure, the Board finds that the evidence persuasively weighs against finding that the Veteran's current bilateral hearing loss began during active service and has been continuous since then or is otherwise related to an in-service injury, event, or disease. The September 2021 VA examiner opined that the Veteran's current bilateral hearing loss is less likely than not incurred in or caused by in-service noise exposure. First, the examiner concluded that there was no significant permanent shift in hearing thresholds from entrance to separation, "which is objective evidence of no permanent auditory damage on active duty from conceded noise." There were also no reports of hearing loss during service or upon separation. She acknowledged that a November 1983 audiogram showed decreased hearing acuity, but she nevertheless determined that this was a transient issue due to fluctuations in hearing because Veteran's separation examination showed hearing within normal limits. Furthermore, the examiner noted that the Veteran had a significant history of noise exposure following his separation from active service. The Board finds this opinion to be highly probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The September 2021 examiner also referenced the Institute of Medicine (IOM) 2006 study that found an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure occurs. The Board recognizes that the IOM report [of 2006, entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus] contains qualifying or contradictory aspects within its text. For example, it concludes there was no sufficient scientific basis for the existence of delayed onset hearing loss, yet also indicates that there was insufficient evidence from studies to determine whether permanent noise-induced hearing loss could develop later in life, long after noise exposure, and that definitive studies on the issue have not been performed. As a result, the Board has considered whether the apparent qualifiers or contradictions within the text diminish the probative value of the VA opinion evidence or render the opinion inadequate. McCray v. Wilkie, 31 Vet. App. 243 (2019). The Board finds they do not, and the opinion maintains its probative value. From the outset, the Board notes that the Veteran has not submitted opposing studies or other medical evidence to support the proposition of delayed hearing loss or to call into question the examiner's overall opinion. See 38 U.S.C. § 5107(a). Per the United States Court of Appeals for Veterans Claims (the Court) in McCray, "a medical text's qualifying or contradictory aspects" is only one factor on a non-exhaustive list that is relevant to the Board's evaluation of the probative value and adequacy of a medical opinion. 31 Vet. App. at 257. Here, the examiner only partially relied on the findings of the report and discussed other factors that contributed to the negative opinion. Of particular significance was the absence of hearing loss complaints in service, the lack of significant puretone threshold shifts from entrance to separation, and a significant history of noise exposure following separation. In considering this combined evidence, the Board finds that the VA examiner did not rely entirely on the IOM report in rendering an opinion and instead considered other relevant facts in this case. Furthermore, there is no evidence that the opinion relied upon principles or methods that are not generally accepted within the medical specialty of audiology. Additionally, despite any contradictory language within the text itself, the opinion clearly reflects that the examiner relied upon the report for the purposes of establishing that delayed hearing loss, as a proposition, is not currently supported by the leading members of the medical community. While the Veteran believes his current bilateral hearing loss is related to in-service noise exposure, he is not competent to provide a nexus opinion regarding this issue. The etiology of his bilateral hearing loss is medically complex, as it requires the ability to administer and interpret complicated diagnostic tests. Therefore, it is outside the Veteran's competence in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Consequently, the Board gives more probative weight to the September 2021 etiological opinion. The Board has also considered the Veteran's assertion that his bilateral hearing loss began during service. The Veteran is competent to make such a report. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). However, the Board concludes that this report is not credible because it is inconsistent with the medical evidence of record. During the Veteran's service and in his February 1985 separation examination, he specifically denied a history of hearing loss or other hearing difficulties. Furthermore, the evidence does not show that he complained of, sought treatment for, or was diagnosed with hearing loss until his VA examination in December 2015, decades after his separation from service. While the Veteran's VA treatment records from December 2015 indicate that he experienced bilateral hearing loss for "a long time," he also stated that he was seeking treatment after he did not pass the hearing component of his health physical for his job as a federal security guard. This statement indicates that his hearing loss was a recent issue. Thus, the Board affords greater weight to contemporaneous medical evidence, as it is more likely to be an accurate reflection of his symptomatology than contradictory statements offered several years later. In sum, the evidence does not show that the Veteran's bilateral hearing loss was shown as chronic in service, manifested to a compensable degree within one year of discharge, or was noted in service with attributable continuity of symptomatology. 38 C.F.R. § 3.303(b); see also Walker, 708 F.3d at 1336. Based on the foregoing, the Board finds that the evidence persuasively weighs against the Veteran's claim for entitlement to service connection for bilateral hearing loss. As such, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). The claim must be denied. 2. Entitlement to service connection for tinnitus Regarding tinnitus, the Veteran asserts that this condition is also due to in-service noise exposure. He further states that his tinnitus had its onset during active service. The Veteran's December 2015 VA examination shows that the Veteran reports recurrent tinnitus; accordingly, the first Shedden elementa current diagnosishas been met. 381 F.3d at 1166-67. As above, the second element of service connection has been met as well because the Veteran's MOS had a moderate probability of hazardous noise exposure. Shedden, 381 F.3d at 1166-67. However, for the following reasons, the Board concludes that the evidence persuasively weighs against finding that the Veteran's current tinnitus began during active service and has been continuous since then or is otherwise related to an in-service injury, event, or disease, to include in-service noise exposure. In her September 2021 examination report, the VA examiner concluded that the Veteran's current tinnitus is less likely than not related to his complaints of in-service noise exposure. She first noted that, during his December 2015 VA examination, the Veteran reported that his tinnitus had its initial onset in 2000, fifteen years following his separation from active duty. Moreover, the Veteran reported significant post-service noise exposure from firearms, lawncare machines, and his employment as a federal security guard and furnace operator at an aluminum plant. As above, the Board considers this medical opinion to have significant probative value because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. The September 2021 examiner also referenced the IOM 2006 study's finding that, "as the interval between a noise exposure and onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases." However, as above, the Board concludes that the opinion maintains its probative value, especially because the opinion also discussed factors including the Veteran's prior statements regarding the onset of his tinnitus, post-service noise exposure, and other medical studies regarding the causes of tinnitus and hearing loss. McCray, 31 Vet. App. at 257. The Board acknowledges that the Veteran believes that his current tinnitus is related to in-service noise exposure. However, he is not competent to provide a nexus opinion regarding this issue. The etiology of tinnitus is medically complex, as it requires the ability to administer and interpret complicated diagnostic testing. Again, because the record does not show that the Veteran has the requisite medical expertise to make a determination regarding this issue, it is outside of his competence in this case. Jandreau, 492 F.3d at1377; see also Kahana, 24 Vet. App. at 435. The Board therefore gives more probative weight to the September 2021 etiological opinion. Consideration has also been given to the Veteran's statement that his tinnitus had its initial onset during active service. While the Veteran is competent to report the onset and presence of observable symptomatology, Charles, 16 Vet. App. at 374, the Board finds that the Veteran's statements are not credible because they are inconsistent with other evidence of record. The Veteran did not report the presence at any point during his active service, to include during his February 1985 separation examination. Furthermore, the Veteran was not diagnosed with tinnitus until his December 2015 VA examination. Importantly, during his December 2015 VA examination, he specifically stated that his tinnitus had its onset in 2000, fifteen years after his separation. Accordingly, the Board affords little probative weight to the Veteran's lay assertions, as they are inconsistent throughout the evidence of record. As the evidence does not show that the Veteran's tinnitus was shown as chronic in service, manifested to a compensable degree within one year of discharge, was noted in service with attributable continuity of symptomatology, or is otherwise etiologically related to his active duty, the Board finds that the evidence persuasively weighs against the Veteran's claim for entitlement to service connection for tinnitus. The benefit of the doubt doctrine is therefore not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 2021 U.S. App. LEXIS 37307, No. 2020-2067. The claim is denied. Neely M. Peden Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.