Citation Nr: 18150450 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-35 741 DATE: November 15, 2018 ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s current bilateral hearing loss did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. 2. The Veteran’s current tinnitus did not have onset during his service, was not caused by his service, and did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309(a) (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 1112 (2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to June 1966. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases, including sensorineural hearing loss and tinnitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385 (2017). For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran contends that his current hearing loss and tinnitus disabilities are due to noise exposure from service. A July 2013 VA examination reflects that the Veteran has a current diagnosis of bilateral sensorineural hearing loss. Auditory threshold at 4000 Hz was 40 dB in the right ear and 45 dB in the left ear. 38 C.F.R. § 3.385. He reported tinnitus symptoms. The Board notes that although a diagnosis of tinnitus was not provided, the Veteran is competent to provide lay evidence of tinnitus as this condition is observable by his own senses. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, these diagnoses satisfy the first element of a service connection claim. The Board concludes that, while the Veteran has sensorineural hearing loss and tinnitus, which are chronic diseases under 38 U.S.C. § 1101(3)/38 C.F.R. § 3.309(a), they were not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Notably, the record does not include diagnose of hearing loss or tinnitus during active service or within one year of the Veteran’s separation from active duty service in June 1966. Although the Veteran alleges tinnitus symptoms during service, service treatment records do not contain any complaints of related symptoms. As for hearing loss, the first documentation of a diagnosis was established on July 2013 VA examination, more than 40 years after service. As such, service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss and tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s disabilities and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records do not contain any complaints of or treatment for hearing loss or tinnitus symptoms. On June 1966 separation, clinical evaluation of the ears was normal. An audiometer test was conducted, and no hearing loss disability was noted. The first audiology test associated with the claims file is dated February 2013. The Veteran was afforded a VA examination in July 2013. He reported noise exposure from flight lines during service. Post-service, he denied having any noise exposure including no recreational activities. A review of the claims file was noted. The examiner opined that the Veteran’s current hearing loss was not related to service, including in-service noise exposure. As rationale, the examiner referenced normal audiological tests at January 1963 entrance and June 1966 separation from service. The examiner acknowledged the Veteran’s report of in-service noise exposure, but no evidence of noise injuries. As such, the examiner concluded that audiograms are the “gold standard” for identifying noise injuries, and in the absence of an objectively verifiable noise injury (significant hearing threshold changes), the association between the Veteran’s claimed hearing loss and noise exposure does not exist. As for tinnitus, the July 2013 examination report documents the Veteran’s report of tinnitus. Notably, the Veteran did not attribute tinnitus symptoms to any specific event, but instead reported that he “spoke to an older corpsman in the service [and] was told not to worry about it.” He claims to have constant tinnitus symptoms. The examiner opined that the Veteran’s current tinnitus is not related to service. As rationale, the examiner stated that there was no evidence of a noise injury (significant hearing threshold changes) during service, and referenced normal audiograms at entrance and separation. The VA examiner’s opinion is probative, because it is based on an accurate medical history, consider the Veteran’s contentions, and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that “most of the probative value of a medical opinion comes from its reasoning” and that “[n]either a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions”). As indicated, the first mention of a hearing loss disability is contained in 2013 private medical records. Further, in a July 2014 disability benefits questionnaire (DBQ), an examiner opined the same. The examiner opined that the Veteran’s current hearing loss was not caused by or the result of reported in-service noise exposure. As rationale, the examiner referenced normal audiograms at January 1963 enlistment and June 1966 separation. As for tinnitus, the Veteran reported an onset of 1965 or 1967. The examiner opined that the Veteran’s current tinnitus was not related to service, including reported noise exposure. Instead, the examiner attributed current tinnitus to his hearing loss disability. In a March 2014 dated letter, a private physician noted that the Veteran has a long history of hearing loss and tinnitus, including reported exposure to aircraft engine noise. The Veteran denied working on the flight line. Based on the Veteran’s report of noise exposure, the private physician opined that “. . . as a former board-certified USAF aerospace medicine physician I believe the bilateral hearing loss and tinnitus are surely linked and related to that noise exposure.” No further rationale was provided. The Board finds this private opinion less probative than the VA examiners’ opinions. While the Board has no reason to doubt his expertise, it is clear from the letter that the private physician’s opinion is largely based on the Veteran’s contentions, as there is no indication that the private physician reviewed the claims file. To this regard, on June 1966 separation, clinical evaluation of the ears was normal and the first mention of hearing loss symptoms was in 2013, more than 40 years after service. Knowledge of these facts is critical to form the basis of a well-reasoned medical opinion. In an August 2015 notice of disagreement, the Veteran stated that he had ear problems upon separation from service but that he “moved on.” He stated that he did not seek treatment for his ear problems because he started a new family. Based on the above, the preponderance of the evidence as to whether the Veteran’s current hearing loss and tinnitus are related to service, weighs against the claim. Relevant law and regulations do not provide for the grant of service connection in the absence of competent evidence linking a current disability to service. As indicated, the Board finds the July 2013 examiner’s opinion highly probative to resolve the question of whether the Veteran’s current hearing loss and tinnitus are related to reported noise exposure during service. While the Veteran believes his hearing loss and tinnitus are related to an in-service injury, event, or disease, including noise exposure, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of cause and effect pertaining to medical diagnoses and symptoms reported many years after service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board must conclude that the weight of the evidence is against the claims of service connection for hearing loss and tinnitus. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Because the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt provision does not help the Veteran. See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for hearing loss and tinnitus are not warranted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel