Citation Nr: 18145378 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 18-32 439 DATE: October 26, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding that the Veteran has a present bilateral hearing loss disability under 38 C.F.R. § 3.385. 2. The preponderance of the evidence weighs against finding that the Veteran’s tinnitus was incurred in service or manifested within a year of his separation from active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to October 1973. Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the basic service connection principles outlined above, hearing loss is not deemed disabling for VA purposes unless the claimed hearing loss is of a particular level of severity. In that regard, hearing impairment will be considered a disability only when the puretone threshold for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or, speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Analysis The Veteran contends that his bilateral hearing loss and tinnitus are due to military service. A review of the Veteran’s service treatment records does not show complaints of acoustic trauma or military noise exposure, or of treatment or diagnoses for any hearing loss or tinnitus. For instance, the October 1973 separation examination was silent for hearing loss or tinnitus, and clinical evaluation of the ears was “normal.” In September 2014, the Veteran submitted a private audiologist. The Veteran reported a history of noise exposure during his military career. His puretone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 25 45 LEFT 10 10 5 15 45 The Veteran’s right and left ear speech discrimination scores on the Maryland CNC were 96 and 100 percent, respectively. The examiner noted that the Veteran had hearing within normal limits falling to moderate to severe sensorineural hearing loss in the high frequency range of 3000 Hz, bilaterally. In February 2015, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. His puretone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 25 50 LEFT 10 15 15 20 45 The Veteran’s speech discrimination scores on the Maryland CNC were 100 percent, bilaterally. The examiner noted that the Veteran had bilateral sensorineural hearing loss in the high frequency range of 500-4000 Hz and 6000 Hz or higher frequencies. The examiner opined that the bilateral hearing loss is less likely as not (less than 50 percent probability) caused by or a result of an event in military service. The examiner stated that the Veteran’s hearing loss did not exist prior to military service. Additionally, there were no significant changes in hearing thresholds while in service; therefore, it is less likely as not that the current hearing loss is due to military noise exposure. Regarding the Veteran’s tinnitus, the examiner stated that the Veteran has a diagnosis of clinical hearing loss, and the examiner opined that the Veteran’s tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner noted that the onset date and circumstances of the Veteran’s tinnitus were unknown, and there were no reports of tinnitus in the service records. Additionally, there were no significant changes in hearing thresholds while in service; therefore, it is less likely as not (less than 50 percent probability) that the current tinnitus is due to military noise exposure. In October 2016, the Veteran submitted a statement from a private physician. The physician noted that the Veteran suffers from tinnitus, and it is as likely as not that the hearing condition is caused by acoustic trauma and loud noise exposure while in military service. In March 2018, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The Veteran’s puretone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 25 55 LEFT 10 15 10 20 40 The Veteran’s speech discrimination scores on the Maryland CNC were 100 percent, bilaterally. The examiner noted that the Veteran had sensorineural hearing loss in the high frequency range of 500-4000 Hz, bilaterally. The examiner stated that the Veteran’s bilateral hearing loss did not exist prior to service. She opined that the bilateral hearing loss is less likely as not caused by or a result of an event in military service. The examiner stated that based on the audiograms, there was no evidence in the record that the Veteran sustained noise injuries. If there is current hearing loss, there is no basis to conclude that this hearing loss was causally related to military service. The examiner further stated that the Institute of Medicine (2006) reported that, based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure. Additionally, there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. Therefore, there is no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure. Regarding the Veteran’s tinnitus, the examiner stated that there was no threshold shift during service. Therefore, tinnitus is less likely than not caused by or a result of military noise exposure. Based on the evidence of record, the Board finds that the Veteran puretone threshold for the frequencies at 500, 1000, 2000, 3000, and 4000 Hertz was not 40 decibels or greater; the thresholds at three of the frequencies were not 26 or greater; and/or the speech recognition score using the Maryland CNC Test was not less than 94 percent. 38 C.F.R. § 3.385. Therefore, based on the evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran has bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. Without competent evidence of bilateral hearing loss, the Board must deny the Veteran’s claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Therefore, without a finding of a current disability, service connection is not warranted. Regarding his tinnitus, the Board notes that the Veteran submitted a positive private opinion stating that the Veteran suffers from tinnitus, and it is as likely as not that the hearing condition is caused by acoustic trauma and loud noise exposure while in military service. However, the private physician did not provide any rationale or explanation for the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (“A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”). Therefore, the Board affords the private opinion little probative weight. On the other hand, the Board has assigned greater probative weight to the VA examinations and the examiners’ opinions. The VA examinations were thorough and adequate and provided a sound bases upon which to base a decision regarding the Veteran’s claim. See Barr v. Nicholas, 21 Vet. App 303 (2007). The examiners considered the relevant history, including the lay evidence of record, performed a physical examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicolson, 21 Vet. App. 120, 123-24 (2007). Based on the evidence of record, the Board finds that the Veteran’s tinnitus is not etiologically related to service. The VA examiners opined that the Veteran’s tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The 2015 VA examiner stated that the Veteran’s tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. As noted above, the Veteran does not have hearing loss for VA purposes; therefore, not service connection for hearing loss. As such, service connection for tinnitus is not warranted. The Board has considered the Veteran and his representative’s lay statements. However, the results of testing prepared by skilled professionals are more probative of the degree of the disability because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound to apply the VA Rating Schedule, under which the rating criteria are defined by audiometric test findings. (Continued on the next page)   The Board has considered the benefit of the doubt doctrine under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel