Citation Nr: 21075428 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-20 211 DATE: December 20, 2021 ORDER Service connection for hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran does not have hearing loss. 2. The Veteran's tinnitus is not due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2011 to March 2014. The case is on appeal from a July 2015 rating decision. The Veteran was scheduled to testify at a Board hearing in November 2021. He was sent advanced notice of the hearing, and his agent representative was copied on the notification. He did not appear for the hearing, request to postpone the hearing, or otherwise provide good cause for not appearing. Thus, the Board finds that the request to testify at a hearing has been withdrawn. See 38 C.F.R. §§ 20.700, 20.702(e), 20.704(e). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for hearing loss 2. Service connection for tinnitus A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. B. Discussion Neither the Veteran nor his experienced representative has offered any statement that the Board can liberally construe or read sympathetically to determine why he believes service connection for hearing loss and tinnitus is warranted. With regard to hearing loss, hearing impairment for VA purposes under 38 C.F.R. § 3.385 is not established. There is no audiometric data in the file and the Veteran has not provided any affirmative statements tending to indicate hearing loss. Regarding tinnitus, a July 2015 VA medical records shows a diagnosis of subjective tinnitus. Hence, a current disability of tinnitus is established. There is no indication of noise exposure or any other reasonably related event during service. The Veteran has not informed VA that he had noise exposure during service or any other event causing a hearing impairment or tinnitus. His specialty during service was 35N10 signals intelligence analyst. This specialty is associated with a low probability of hazardous noise exposure. See VA's The Duty Military Occupational Specialty (MOS) Noise Exposure Listing. The Veteran's service treatment records (STRs) also do not indicate the onset of a hearing loss impairment or noise exposure. A reference audiogram during service in February 2011 showed hearing acuity as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 0 5 LEFT 10 5 0 5 5 A further audiogram in service from October 2012 showed hearing acuity as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 5 LEFT 10 10 15 5 15 The report contains a handwritten circle around the box indicating a 15 decibel threshold shift at 2000 Hertz on the left. Where asked if there was a significant threshold shift, the examiner marked "1" for "No." There is also a handwritten circle in the "Remarks' section around the statement reading "Early warning for a decrease in hearing _____ (L)." In an October 2012 medical history questionnaire, the Veteran denied a history of hearing trouble and hearing loss. The Veteran did not undergo a complete separation examination. He underwent a Medical Evaluation Board and Physical Evaluation Board proceeding due to an unrelated medical condition. He also underwent a joint Department of Defense/VA examination. It states he did not report tinnitus. No audiological examination appears to have been conducted. These STRs do not indicate a hearing impairment or noise exposure. The October 2012 audiogram contains the circle around the 15 decibel threshold shift and the statement "Early warning for a decrease in hearing _____ (L)." This does not indicate noise exposure for two reasons. First, the latter statement appears to have been pre-printed on the form. It is not filled in; no context or explanation is provided. The Board, therefore, has no way to know by whom or why these two circles were added. Hence, it is not probative evidence supporting a finding of noise exposure or a hearing loss during service See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 240 (2012). In fact, the audiologist otherwise specifically marked "No" where asked if there was a significant threshold shift. Second and relatedly, the Veteran's hearing thresholds, even at the 2000 Hertz level, remained below 20 decibels. Hence, it does not indicate any degree of hearing loss. See McKinney v. McDonald, 28 Vet. App. 15, 23-24 (2016). Overall, this evidence does not establish an in-service event, injury, or disease. Finally, there is no indication of a nexus to service. The only potential indication of a nexus to service is the Veteran's claim itself. However, the Veteran provided no details or explanation. The Board finds that the filing of the claim alone, without some other information in the record, does not reasonably raise an indication of a nexus to service. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Service connection on a presumptive basis for tinnitus is not available. The diagnosis of subjective tinnitus was made at VA in July 2015. This was greater than one year after his March 2014 service separation. The Veteran has not indicated that the condition arose any earlier. The diagnosis was made in close relative proximity to service, but this by itself does not indicate a nexus to service. Based on the evidence of record it would be speculative to infer that the diagnosis arose prior to July 2015. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015). A VA examination has not been conducted. Generally, a VA medical examination will be provided where (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, there is no indication that the Veteran may have a hearing impairment or tinnitus associated with his service. A VA examination is not warranted based on the limited information available. See Waters, 601 F.3d at 1278. In sum, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for hearing loss and tinnitus is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.