Citation Nr: 18159168 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-02 515 DATE: December 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The probative evidence of record does not show the Veteran suffers from bilateral hearing loss for VA purposes. 2. The probative evidence of record does not show the Veteran’s tinnitus was manifest during service, within one year of service or is otherwise related to his active duty service. 3. The probative evidence of record shows the Veteran does not have a current diagnosis of PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1966 to January 1968. Service Connection 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. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); see Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). 1. Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to his active duty service, to include his service in the combat infantry. For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. Pursuant to 38 C.F.R. § 3.385 (a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Here, the medical evidence does not reflect the Veteran has a hearing loss disability for VA purposes. In August 2015, the Veteran received a VA examination. On this audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT EAR 10 10 10 10 20 LEFT EAR 15 10 10 15 20 In addition, speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. The examiner then opined that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of his military service. The examiner rationalized that the Veteran’s entrance examination indicated normal hearing and his exit exam also indicated normal hearing. The examiner further rationalized that the Veteran’s current examination represents minimal hearing loss, as well as there were no significant threshold shifts, indicative of noise injury, noted when comparing entrance and exit examinations. The examiner also provided that the Veteran’s STRs are silent for complaints or treatment of hearing loss. The Board notes that the Veteran has provided private medical records dated October 2015. Although the records show the Veteran was seen for decreased hearing and tinnitus, no audiological readings were performed, to include pure tone thresholds or speech discrimination. Further, there was no formal diagnosis of bilateral hearing loss. There is no other competent medical evaluation in accord with the requirements of 38 C.F.R. § 3.385(a) that is otherwise of record which reflects the Veteran has a hearing loss disability as defined by 38 C.F.R. § 3.385. Due to the result of the examination, the Veteran does not have a current hearing disability for VA purposes. Additionally, the Board acknowledges that the Court has previously held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim’s adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had a hearing loss disability of either ear as defined by 38 C.F.R. § 3.385 at any time during the pendency of this case. Therefore, because the Veteran does not currently have a bilateral hearing disability for VA purposes, service connection must be denied. 2. Tinnitus The Veteran contends that he currently suffers from tinnitus and that it is related to his active service. The Board finds that service connection for tinnitus is not warranted. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As an initial matter, the Board acknowledges that the Veteran has a current diagnosis of tinnitus and that he was exposed to noise in service. Thus, the issue turns upon whether there is evidence of a nexus between the claimed in-service disease or injury and the present. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In August 2015, the Veteran received a VA examination. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The examiner rationalized that the Veteran’s service examinations showed normal hearing at entrance and exit, with no significant permanent threshold shifts noted. Even after acknowledging the Veteran’s combat service and exposure to acoustic trauma, the examiner stated that there was no audiologic evidence to conclude that such resulted in a hearing loss disability, to include tinnitus. The examiner further rationalized that there were no complaints, diagnosis, or treatment of the claimed condition in service and the Veteran reportedly developed tinnitus years after service. The Board recognizes that in private medical records dated October 2015 the Veteran reported suffering from tinnitus since his service. However, he also reported having the problem of hearing loss and tinnitus for the last 6 months, and thus, his statements are conflicting. The Board also acknowledges the Veteran’s assertions that his tinnitus is due to in-service noise exposure. While the Board finds that his assertion of an in-service injury consistent with the circumstances of his combat service, his statements that he has had tinnitus continuously since service are inconsistent with other statements provided to medical providers and therefore the Board assigns low probative weight to them. Thus, the Board concludes that the preponderance of evidence is against the claims and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 3. PTSD The Veteran contends that he currently has PTSD that is related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has a verified in-service stressor and/or event. However, the Board finds that the medical evidence of record does not reflect the Veteran has a current PTSD diagnosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In July 2015, the Veteran received a VA examination. The examiner opined that the Veteran did not have current mental disorder diagnosis. The examiner provided that the stressors experienced were efficient to support a diagnosis of PTSD. However, the only criteria the Veteran met under DSM-V was directly experiencing the traumatic event, witnessing in person the traumatic event, and marked alterations in arousal and reactivity associated with the traumatic event. The examiner provided that the Veteran had no other symptoms attributable to PTSD. The examiner then opined that the Veteran did not meet the DSM-V criteria for a diagnosis of PTSD. The examiner further opined that the Veteran did not meet the criteria for generalized anxiety disorder, panic disorder, specific phobia, bipolar disorder, adjustment disorder, or any psychotic disorder. The Board notes that VA treatment records do not show a diagnosis for PTSD. Further, the Veteran has provided no additional medical evidence that shows a diagnosis of PTSD, or treatment of PTSD or any other psychiatric disorder. (Continued on the next page)   The Board acknowledges that the Court has previously held that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim’s adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, however, the record does not reflect the Veteran has had PTSD or any other psychiatric disorder at any time during the pendency of this case. Therefore, because the Veteran does not currently have an acquired psychiatric disability to include PTSD, or at any time during the pendency of the case, service connection must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel