HEARING LOSS

Summary

The veteran, who served from January 2002 to December 2004, appeals the denial of service connection for bilateral hearing loss and tinnitus. The Board acknowledged the veteran's service in the Army and the conceded exposure to loud noise and acoustic trauma during service. However, the Board found the evidence weighed against the claims. The veteran had a December 2016 VA examination, which was deemed inadequate by the Board for lacking proper rationale. A subsequent August 2020 VA examination found the veteran's mixed hearing loss was not typically caused by noise exposure, but rather by middle ear pathology present before service. The examiner concluded it was less likely than not that the hearing loss was due to military service. Similarly, the examiner found the tinnitus less likely than not due to service, noting the absence of complaints in service treatment records and the veteran's denial of tinnitus during service and in a May 2010 treatment note. The Board gave more weight to the veteran's earlier, more contemporaneous statements and the lack of continuity of symptomatology. The Board found the evidence did not support service connection and therefore denied the claims.

Rationale

Mixed hearing loss not typically caused by noise exposure; Middle ear pathology present prior to service; Less likely than not due to military service

Full Decision Text

Citation Nr: 22067264
Decision Date: 12/05/22	Archive Date: 12/05/22

DOCKET NO. 18-09 493
DATE: December 5, 2022

ORDER

Entitlement to service connection for bilateral hearing loss is denied.

Entitlement to service connection for tinnitus is denied.

FINDING OF FACT

The most probative (meaning most competent and credible) evidence of record is against finding that the Veteran's mixed (conductive and sensorineural) hearing loss and tinnitus (ringing in his ears) are related or attributable to his military service  including owing to exposure to hazardously loud noise and consequent injury (acoustic trauma).

CONCLUSION OF LAW

The criteria are not met for entitlement to service connection for bilateral (left and right ear) hearing loss and tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 2002 to December 2004.

This appeal to this Board of Veterans' Appeals (Board) is from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), also referred to as the Agency of Original Jurisdiction (AOJ).

In April 2020 the Board reopened the claim of entitlement to service connection for bilateral hearing loss.  But rather than immediately readjudicating this claim on its underlying merits, de novo, the Board instead then proceeded to remand this claim, also the claim for tinnitus, back to the RO (AOJ) for further development and consideration that especially included having the Veteran undergo a VA audio examination for a medical opinion concerning the likelihood his mixed (conductive and sensorineural) hearing loss and tinnitus are related or attributable to his military service  particularly to is conceded exposure to hazardously loud noise and consequent injury (acoustic trauma). There since has been the required compliance  certainly the acceptable substantial compliance  with the Board's remand directive.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Service Connection

In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also 38 U.S.C. § 1110; 38 C.F.R. § 3.303.

 

In addition, certain "chronic" diseases  including sensorineural hearing loss and tinnitus since organic diseases of the nervous system, will be presumed to have been incurred in service, absent an intervening cause, if they were shown as chronic in service or if they manifested to a compensable degree within a year following separation from service, or if they were noted in service (or within the presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). See also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (clarifying that only the "chronic" diseases specifically listed in 38 C.F.R. § 3.309(a) may be etiologically linked to the Veteran's service by this alternative means).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (
3.307, 3.309(a). See also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (clarifying that only the "chronic" diseases specifically listed in 38 C.F.R. § 3.309(a) may be etiologically linked to the Veteran's service by this alternative means).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

1. Entitlement to service connection for bilateral hearing loss

2. Entitlement to service connection for tinnitus

As concerning the claim for service connection for hearing loss, impaired hearing will only be considered a ratable disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 

The threshold for normal hearing is from 0 to 20 decibels, so higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  But, as the Court explained in Hensley, while the Veteran need not have had sufficient hearing loss during his service, or even sensorineural hearing loss within a year of his discharge from service, he must now have sufficient hearing loss to satisfy these threshold minimum requirements of this VA regulation to have a ratable disability. In the absence of proof of present disability, there necessarily can be no valid claim because, for all intents and purposes, there is no current disability to in turn relate or attribute to his military service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability means one shown by competent and credible (i.e., probative) evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997).

The Veteran's December 2016 and more recent August 2020 VA examinations confirm he has sufficient hearing loss in each ear, so bilaterally, to in turn be considered a ratable disability for VA compensation purposes according to the threshold minimum requirements of § 3.385. Additionally, noise exposure during his service also has been conceded, which the Board acknowledged when remanding this claim, since he was exposed to small arms fire and other loud noises during his service. 

What therefore is left for the Board to determine is whether there also is a relationship or correlation ("nexus") between his noise exposure in service and his current bilateral hearing loss and/or tinnitus.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  And, unfortunately, it is in this equally critical respect that the probative evidence is against his claims, not instead supportive of them or even in relative balance, i.e., equipoise.

The Veteran initially had a VA audiological examination in December 2016 to determine the etiology of his bilateral hearing loss and tinnitus. However, the Board's April 2020 remand determined that December 2016 opinion was inadequate for failing to provide adequate rationale  which is where most of the probative value of a medical opinion is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).

The Board consequently remanded this claim for more
.").  And, unfortunately, it is in this equally critical respect that the probative evidence is against his claims, not instead supportive of them or even in relative balance, i.e., equipoise.

The Veteran initially had a VA audiological examination in December 2016 to determine the etiology of his bilateral hearing loss and tinnitus. However, the Board's April 2020 remand determined that December 2016 opinion was inadequate for failing to provide adequate rationale  which is where most of the probative value of a medical opinion is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008).

The Board consequently remanded this claim for more medical comment on this determinative issue of causation since it is incumbent on the Board in this circumstance to correct the failings of that prior examination and opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (whenever VA endeavors to provide an examination for a medical opinion, it must ensure they are adequate).

In August 2020, to this end, the Veteran had another VA audiological examination. The examiner determined the Veteran's bilateral hearing loss is of the "mixed" variety, meaning partly conductive and partly sensorineural rather than exclusively one or the other.  This examiner explained that, when a patient has mixed hearing loss, the pathology is such that it is "not typically caused by noise exposure." Rather, the mixed hearing loss is "indicative of middle ear pathology," which the Veteran had prior to his military service (his medical history shows treatment as far back as during his childhood). 

While conceding the Veteran was exposed to acoustic hazards during his service, the examiner nonetheless ultimately concluded that "it is less likely than not" the Veteran's hearing loss is due to his military service, instead, more likely than not owing "middle ear problems" he had prior to his service.  This conclusion was based on the fact that the type of hearing loss he has is not caused by acoustic trauma, as well as the fact that his service treatment records (STRs) show no permanent audio threshold shifts. 

Similarly, this examiner determined the Veteran's tinnitus also is less likely than not due to his military service, so including owing to acoustic trauma. This conclusion was based on the fact that his STRs show no complaints of this disease.  Indeed, during his military separation physical examination, he specifically denied experiencing tinnitus, so even he acknowledged not having it.  See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present).

 

Moreover, the Veteran's post-service medical records show the onset of his tinnitus was sometime later  in 2010 or at the end of 2011 or thereabouts.  That was several years after conclusion of his military service, which tends to refute the notion this disease originated during his service or even within the one-year presumptive period following conclusion of his service.  The lapse of time between separation from service and the earliest documentation of the now claimed disability is a factor for consideration in deciding whether service connection is warranted. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time following service during which there was no clinical documentation of the now claimed disorder). Consider also that an intervening May 2010 VA treatment note is unremarkable for tinnitus, though by November 2011 it had manifested. 

In any event, the most persuasive evidence does not attribute this disease to the Veteran's military service  including to his conceded acoustic trauma. He told the more recent August 2020 VA examiner that the tinnitus began sometime in 2003, so during his service. But that recollection is contrary to his express denial of this disease during his service, as well as in conflict with his post-service treatment records, such as in May 2010, when he again denied having tinnitus. As such, the Board gives more probative weight to those earlier statements he made more contemporaneous to when he was in service, including during evaluation and treatment during his service when he had clear opportunity to cite any symptoms or consequent disability he then had. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (
 conceded acoustic trauma. He told the more recent August 2020 VA examiner that the tinnitus began sometime in 2003, so during his service. But that recollection is contrary to his express denial of this disease during his service, as well as in conflict with his post-service treatment records, such as in May 2010, when he again denied having tinnitus. As such, the Board gives more probative weight to those earlier statements he made more contemporaneous to when he was in service, including during evaluation and treatment during his service when he had clear opportunity to cite any symptoms or consequent disability he then had. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010); Curry v. Brown, 7 Vet. App. 59 (1994).  See also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted during medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73.

For these reasons and bases, this is not a situation where the evidence supporting these claims are in relative balance, meaning "approximate" (nearly equal) balance, even if not exact balance, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, these claims are denied.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Neville, 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.