Citation Nr: 18159545 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-04 679 DATE: December 20, 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 competent and credible evidence weighs against finding that the Veteran’s bilateral hearing loss is etiologically related to service, and did not manifest within one year of discharge from service. 2. The preponderance of the competent and credible evidence weighs against finding that the Veteran has tinnitus. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(b), 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. He appeals the April 2014 rating decision denying service connection for bilateral hearing loss and tinnitus. The Veteran contends that he developed bilateral hearing loss and tinnitus due to excessive noise exposure in service. A Veteran that can show a disability resulting from personal injury suffered or disease contracted, or for aggravation of preexisting injury suffered or disease contracted in the line of duty in active service is entitled to VA disability compensation. 38 U.S.C. § 1110. To establish entitlement to VA disability compensation, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of an injury or disease; and, (3) a causal link between the present disability and the injury or disease incurred or aggravated in-service (“nexus” requirement). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Hearing loss and tinnitus have been interpreted as such diseases. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In the absence of proof of a present disability, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. A veteran need only demonstrate that there is an approximate balance of positive and negative evidence to establish entitlement to VA disability compensation. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Bilateral hearing loss Hearing loss is determined for VA compensation purposes by way of audiological testing composed of puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. A hearing disability is shown when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or, when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 26 decibels or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran underwent VA examinations (with audiometric evaluations) in March 2014 and September 2016. The results of the March 2014 exam are as follows: Puretone Thresholds HERTZ 500 1000 2000 3000 4000 RIGHT EAR 50 60 70 70 65 LEFT EAR 50 60 70 65 65 Speech Recognition Scores (Maryland CNC Test) RIGHT EAR 78 percent LEFT EAR 82 percent The results of the September 2016 exam are as follows: Puretone Thresholds HERTZ 500 1000 2000 3000 4000 RIGHT EAR 45 50 60 65 60 LEFT EAR 45 55 65 60 65 Speech Recognition Scores (Maryland CNC Test) RIGHT EAR 88 percent LEFT EAR 84 percent The evidentiary record shows that the Veteran currently has hearing loss for VA purposes. The first Shedden element has been met. The Veteran credibly reports exposure to excessive noise in service as a tank mechanic. The Veteran submitted evidence featuring the specific equipment that he repaired and maintained. However, the Veteran’s contention that his hearing loss is attributable to noise exposure is not within the realm of a non-expert. The Veteran’s opinion on this matter is not competent evidence, rendering it minimally probative. The Veteran contends that he was not given a hearing exam upon separation from service. However, the exit examination of record contains audiometric testing results showing normal hearing, even considering both American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. See August 1968 separation exam. The March 2014 and September 2016 examiners opined, after review of the entire claims file, that the Veteran’s hearing loss is less likely than not caused by or a result of an event in service. The March 2014 examiner cites to a 2006 Institute of Medicine (IOM) study that concluded there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiner opined that comparison of the Veteran’s hearing upon entrance to his hearing upon separation did not reveal a significant threshold shift. See March 2014 VA examination. The September 2016 examiner concluded that, based upon the puretone threshold tests of record, there was no significant threshold shift noted from the time the Veteran entered the military to the time he was discharged. These opinions, when combined, are given substantial weight. The record does not contain complaints of hearing loss during service or within one year of separation. The Veteran reported during the March 2014 VA examination that his hearing had significantly worsened during the last five years, several decades outside of the presumptive period. On balance, the preponderance of the competent and credible evidence weighs against finding that the Veteran’s bilateral hearing loss is related to service. 2. Tinnitus The Veteran and his representative assert that the Veteran’s tinnitus is related to noise exposure during service. The Veteran attests to continuous maintenance of tanks with the engines running. Although the Veteran is competent to testify as to his exposure to excessive noise in service, the record does not reflect any past or present complaints of tinnitus symptoms. In the instant case, the Veteran denies symptoms of tinnitus. The Veteran denied experiencing any complaint of tinnitus at present or any time in the past in the March 2014 VA exam. Likewise, in the September 2016 VA exam, the Veteran again denied experiencing any type of tinnitus. Thus, the first Shedden element has not been met. The Veteran is not eligible for service connection for tinnitus because there is insufficient evidence of a current disability in the record. (Continued on the next page)   On balance, the preponderance of the competent and credible evidence weighs against finding that the Veteran currently has tinnitus. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.J. Ballinger, Law Clerk