Citation Nr: 18155845 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 13-15 767 DATE: December 6, 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 preponderance of the evidence is against finding that the Veteran has bilateral sensorineural hearing loss due to a disease or injury in service, to include acoustic trauma; and such was not manifested in service or the first post-service year. 2. The preponderance of the evidence is against finding that the Veteran has tinnitus due to a disease or injury in service, to include acoustic trauma; and such was not manifested in service or the first post-service year. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2018). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection In order to obtain service connection the evidence must show: (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, i.e., a “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Further, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85(a). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a pure tone audiometry test, and the examination must be conducted without the use of hearing aids. Entitlement to service connection for bilateral hearing loss The Veteran contends that his hearing loss is the result of noise exposure during active service. As an initial matter the Board notes that military noise exposure has been previously conceded by the AOJ based on the Veteran’s duties in the Air Force as a security policeman. A March 2011 VA treatment record indicates the Veteran’s first complaint of hearing loss on the record, which he stated began during combat conditions in Vietnam. In May 2011, the Veteran attended a VA Audio examination. The examiner diagnosed bilateral sensorineural hearing loss and opined that it was not caused by or a result of acoustic noise trauma while in the military. The rationale provided was that hearing sensitivity was within normal limits at both entrance and separation audiograms. No significant threshold shift seen across frequencies affected by noise when comparing the entrance and separation audiograms. A June 2012 VA Audio Consultation indicates the Veteran noted gradual onset hearing loss since service in Vietnam. In November 2015, the Veteran attended a Board hearing. He testified to ongoing hearing loss that originated in Vietnam. In a December 2015 Remand, the Board found that the May 2011 opinion’s rationale was inadequate and ordered a new examination. Subsequently, in April 2016, the Veteran attended a VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) examination. The examiner diagnosed bilateral sensorineural hearing loss and opined that his bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service with a rationale stating that the Veteran had normal hearing upon entrance. Although the Veteran reports noise exposure during service, records show no significant threshold shift upon exit. Further, the Veteran’s discharge audiogram showed a threshold of 25dB at 500Hz at discharge. His current threshold of hearing at 500Hz is 5dB, (today's exam). This is not considered hearing loss. Normal hearing for the adult population is considered to be 0-25dB. Also, 500Hz is not considered a frequency that is most affected by noise exposure. His hearing is currently within normal limits at 500Hz in the left ear Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral hearing loss disability. Indeed, the April 2016 examiner opined that his bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. This opinion is probative, because it was based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to this opinion. While the Veteran believes his bilateral sensorineural hearing loss is related to an in-service injury, event, or disease, including acoustic trauma, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board gives more probative weight to the April 2016 VA opinion and the medical evidence of record. For these reasons, service connection for bilateral sensorineural hearing loss on the basis that it is related to service, including hazardous noise exposure, is not warranted. Entitlement to service connection for tinnitus Tinnitus is a simple condition which may be diagnosed by a lay person, and indeed is primarily assessed based on subjective reports. Thus, a current diagnosis is established based on the Veteran’s own reports of ringing in the ears. Moreover, as noted above, hazardous noise exposure has been conceded. However, service treatment records are silent for complaints, treatment, or diagnoses related to tinnitus and the Veteran has alleged that this tinnitus began just a few years ago, decades after his active service. Further, the only probative VA examination of record, the April 2016 Hearing Loss and Tinnitus DBQ, examiner provided an opinion stating the Veteran’s tinnitus not at least as likely as not caused by or a result of an event in military service with a rationale that although the Veteran did report noise exposure during his tenure in the military, his hearing loss was not evident on his separation audiogram and the Veteran was unable to provide an onset date for his tinnitus. Tinnitus is a known symptom of hearing loss and it is at least as likely than not that the Veteran’s tinnitus is due to the Veteran’s hearing loss. This opinion was based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, service connection for tinnitus is not warranted on the basis that it began in service and has persisted. Given there is also no evidence or allegation of manifestation in the first post-service year, service connection for tinnitus is also not warranted on a presumptive basis (under 38 U.S.C. § 1112) as a chronic disease that manifested to a compensable degree in the first post-service year. While the Veteran believes his tinnitus loss is related to an in-service injury, event, or disease, including acoustic trauma, his opinion is not credible, in light of the more contemporaneous statements that his tinnitus began long after service. As such, the preponderance of the evidence is against the claim. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel