Citation Nr: 21000132 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-34 422 DATE: January 4, 2021 ORDER 1. Entitlement to service connection for left ear hearing loss is denied. 2. Entitlement to service connection for right ear hearing loss is denied. 3. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The probative evidence of record does not show a medical nexus between the Veteran’s left ear hearing loss and his military service. 2. The probative evidence of record does not show a medical nexus between the Veteran’s right ear hearing loss and his military service. 3. The probative evidence of record does not show a medical nexus between the Veteran’s tinnitus and his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss disability are not met. 38 U.S.C. §§ 101, 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2019). 2. The criteria for service connection for right ear hearing loss disability are not met. 38 U.S.C. §§ 101, 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2019). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). REAONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1966 to June 1970 including service aboard ships in the Southeast Asia theater of operations. These matters come before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran develops certain chronic diseases, such as organic diseases of the nervous system (e.g., sensorineural hearing loss and tinnitus), to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the medical evidence of record demonstrates a current bilateral hearing loss disability and tinnitus. Where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). With specific regard to continuity of symptomatology, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, such as hearing loss or tinnitus, noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Entitlement to service connection for left ear hearing loss Entitlement to service connection for right ear hearing loss For VA purposes, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The Veteran contends that he experiences bilateral hearing loss due to his Naval service. Personnel records show that the Veteran served as a boiler technician aboard two aircraft carriers which the Board finds consistent with exposure to loud noise. The Veteran’s Service Treatment Records (STRs) do not contain complaint of, treatment for, or diagnosis of hearing loss. Post service, the first instance of hearing loss came in March 2017 when the Veteran submitted a claim of service connection for bilateral hearing loss. The first instance of a diagnosis of hearing loss in the Veteran’s medical record came in June 2017. In an VA audiology consultation, the Veteran reported his service as a boiler technician and that he worked for the Navy on boilers after his active duty. A VA audiologist noted that the Veteran did not perceive any concern for hearing loss, but the Veteran’s physician detected asymmetrical sensorineural hearing loss and provided a prescription for a left ear hearing aid. See #2 July 2017 CAPRI, p. 10. The record does not show any complaint, treatment or diagnosis of hearing loss of either ear at an earlier date. The Veteran was also provided a VA examination in June 2017. At the examination, the Veteran reported noise exposure working in a boiler room, that he had a hearing test 5 to 10 years prior in which his hearing was normal and that both his hearing loss and tinnitus began between 2015 to 2016. Testing showed hearing loss meeting the VA criteria for disability only in the left ear, although the puretone threshold was 35 decibels at one frequency in the right ear. The VA examiner diagnosed the Veteran with left ear hearing loss only, and opined that the Veteran’s left ear hearing loss and tinnitus were less likely than not due to his military service, given that the Veteran’s hearing was found to be normal upon separation and that both his hearing loss and tinnitus did not occur until over 40 years after service. See June 2017 C&P Exam. The Veteran’s claim was subsequently denied, and the Veteran appealed. In doing so, the Veteran requested a hearing before the Board, which was provided in November 2020. At the hearing the Veteran elaborated on his in-service noise exposure and testified that his hearing loss began in service and that he did not report it while in service, though he could not put a date on when his hearing loss or tinnitus began. See November 2020 Hearing Transcript. In the present case, the Board concedes that the Veteran suffers from left ear hearing loss and that he experienced noise exposure while in the Navy. As such, the first and second elements of service connection are met. The Board turns to the third element of service connection: a nexus between the Veteran’s hearing loss and his military service. The question of whether a nexus exists is a medical determination that requires a competent nexus opinion, as the determination of the etiology of the Veteran’s disability is a complex medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A review of the record only shows a single probative nexus opinion regarding the Veteran’s hearing loss, in which the July 2017 VA examiner found that the Veteran’s hearing loss was less likely than not due to noise exposure while in the United States Navy. Given that the VA examiner conducted an in-person examination, reviewed the Veteran’s medical record, considered the Veteran’s lay statements and provided a rationale based on the record, the Board finds that the nexus opinion is of significant probative value. As there are no competing nexus opinions of record, the Veteran’s claim does not meet the third Shedden requirement, and as such the claim must be denied. Regarding right ear hearing loss, the Board notes that the Veteran has not been diagnosed with a disability and the Board acknowledges that the Veteran has testified at his November 2020 hearing before the Board that his hearing loss has worsened since his last examination. Furthermore, the Veteran has stated that he has received treatment for right ear hearing loss at VA facilities, when such evidence is not in the Board’s possession. However, the Board finds that a remand for a new examination is not required. For the purposes of this decision, the Board notes the single abnormal measurement at one frequency in 2017 and will find the Veteran’s report of current right ear hearing loss is credible and assume that he may have a bilateral hearing loss disability. This is due to the June 2017 VA examiner having provided a probative medical opinion in which a medical nexus was not found. Specifically, the VA examiner pointed to the Veteran’s hearing being normal upon separation from the Navy and the long passage of time between separation and a diagnosis. Given that a medical nexus is required, the Board finds that even if evidence shows that the Veteran suffers from right ear hearing loss, the claim must still be denied on the same grounds as left ear hearing loss. Because the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for tinnitus The Veteran contends that he experiences tinnitus due to his military service. The Veteran’s Service Treatment Records (STRs) do not contain complaint of, treatment for, or diagnosis of tinnitus loss in service. The first indication of tinnitus in the record came in July 2017 during an otolaryngology consultation. While diagnosed, the record does not show any complaint, treatment or diagnosis of tinnitus at an earlier date. See #2 July 2017 CAPRI p. 9. The Veteran was also provided a VA examination in June 2017. At the examination, the Veteran reported noise exposure working in a boiler room, that he had a hearing test 5 to 10 years prior in which his hearing was normal and that both his hearing loss and tinnitus began between 2015 to 2016. See June 2017 C&P Exam. The Veteran’s claim was subsequently denied and the Veteran appealed. In doing so, the Veteran requested a hearing before the Board, which was provided in November 2020. At the hearing the Veteran elaborated on his in-service noise exposure and testified that his tinnitus loss began in service and that he did not report it while in service, though he could not put a date on when his tinnitus began. See November 2020 Hearing Transcript. The Board concedes that the Veteran has tinnitus and that he was exposed to noise while in service. Therefore, the first and second elements of service connection are met. Concerning the third element, a nexus between the Veteran’s tinnitus and military service, the Board notes that the Veteran is competent to provide a report on his sensing of tinnitus. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007). However, the Board finds the July 2017 VA examiner’s nexus opinion to be more probative than the Veteran’s lay statements due to the Veteran’s inconsistent statements. The Veteran has stated, during his May 2017 VA examination, that his tinnitus began 1 to 2 years before the date of his claim. It was only after the denial of the Veteran’s claim that he testified that his tinnitus began in service and has been consistent since. Given the contradictory statements, the Board affords diminished probative value to the Veteran’s lay statements regarding the etiology of his tinnitus. In comparison, the May 2017 VA examiner, as stated above, conducted an in-person examination, reviewed the Veteran’s medical records, considered the Veteran’s lay statements, and provided a rationale supported by the record. (continued next page) In sum, the Board finds that the probative evidence of record does not show a nexus between the Veteran’s current hearing loss and tinnitus with his military service. Because the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.