Citation Nr: 18144834 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-29 769 DATE: October 25, 2018 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran does not have a current bilateral hearing loss disability for VA compensation purposes. 2. The Veteran does not have tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, had active service from May 22, 2007 to May 21, 2011. This matter is on appeal before the Board of Veterans’ Appeals (“Board”) from a March 2014 initial rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) that denied service connection for bilateral hearing loss and tinnitus. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Veteran filed a Fully Developed Claim (FDC) pursuant to the Secretary of VA's program to expedite claims. Under this framework, a claim is submitted in a "fully developed" status, limiting, if not eliminating, the need for further development by VA. As part of the FDC process, a veteran is to submit all evidence relevant and pertinent to the claim. However, under certain circumstances, additional development may still be required prior to adjudication of the claim. In this case, the Veteran has not been provided with a VA examination or medical opinion in connection with the claim for service connection for bilateral hearing loss or tinnitus; however, no VA examination or medical opinion is needed because the evidence shows no in-service injury, disease, or event to which the claimed bilateral hearing loss or tinnitus could be related by medical opinion. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that of no in-service event or injury, a VA examination and nexus opinion are not required). Any purported nexus opinion that assumed as a fact the occurrence of an in-service loud noise exposure would be assuming an inaccurate fact (contrary to the weight of the evidence and the Board's factual finding in this decision based on weighing all the evidence, lay and medical), so would be of no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual basis is of no probative value). Service Connection Laws and Regulations Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran does not have sensorineural hearing loss (i.e., an organic disease of the nervous system) or a current bilateral hearing loss disability as defined by VA regulatory criteria (38 C.F.R. § 3.385) or tinnitus. As there is no "chronic disease" under 38 C.F.R. § 3.309(a), the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the U.S. Court of Appeals for Veteran Claims has held that “the threshold for normal hearing is from 0 to 20 dBs and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Service Connection for Bilateral Hearing Loss The Veteran contends generally that she has bilateral hearing loss, and that it caused by service. See June 2016 Form 9. Specifically, the Veteran contends that prior to service separation a proper hearing test was never provided. In the June 2016 Form 9, the Veteran reported that she constantly has to ask people to repeat what they have said and has to guess at part of the conversation. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence shows no current bilateral hearing loss disability as defined by the VA regulations at any time during or immediately prior to the claim period. 38 C.F.R. § 3.385. See STR September 2011; CAPRI August 2016. Post-service treatment records show no current bilateral hearing loss disability as defined by VA regulatory criteria. 38 C.F.R. § 3.385. The Veteran does not have the requisite specialized expertise in audiology to diagnose a hearing loss disability that meets the § 3.385 criteria. A hearing loss disability is diagnosed primarily on objective clinical findings, audiometric testing, and controlled speech recognition testing; thus, while the Veteran is competent under the facts of this case to relate symptoms of hearing loss that are experienced at any time, the Veteran is not competent to diagnose a hearing loss disability. Such diagnosis requires specific medical knowledge and training in audiology and must be supported by objective clinical findings and audiometric testing. The weight of the evidence shows no bilateral hearing loss disability as defined by VA regulatory criteria at § 3.385. The evidence of record does not demonstrate a hearing loss disability at any point during the claim period or a recent diagnosis prior to the filing of the claim for service connection to meet the criteria of 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (“Compensation for service-connected injury is limited to those claims which show a present disability”). The Court has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer, 3 Vet. App. at 225; see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain, 21 Vet. App. at 319; Romanowsky, 26 Vet. App. 289 (recognizing disabilities that occur immediately prior to filing of a claim). As the weight of the evidence demonstrates that the Veteran does not have currently diagnosed bilateral hearing loss for VA compensation purposes, the preponderance of the evidence is against the claim, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection for Tinnitus The Veteran contends that she now experiences headaches with buzzing and ringing noises, and believes that tinnitus was caused by service. See June 2016 Form 9. After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current disability of tinnitus, and has not had tinnitus at any time during or immediately prior to this claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303(a), (d). Service treatment records from May 2007 through March 2011 do not contain complaints of tinnitus, ringing in the ears or other symptoms of tinnitus or other disorder of the ear. Specifically, a post deployment health assessment from September 2010 revealed that the Veteran denied ringing in the ears. Post-service treatment records from July 2015 through July 2016 do not show any complaints, symptoms, or diagnosis of tinnitus or other disorder of the ear. A September 2015 treatment report shows the Veteran denied experiencing tinnitus. See September 2015 CAPRI. Statements made for treatment purposes are particularly trustworthy because an individual has an incentive to report accurately the symptoms, to include their frequency, in order to receive proper care. While the Veteran is competent to report tinnitus at any time, she has not credibly reported tinnitus at any time immediately prior to or during the claim period. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). For these reasons, the Board finds that the weight of the evidence is against finding that the Veteran has a current tinnitus disability. As the preponderance of the evidence is against the claim, the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Reine Bedford, Associate Counsel