Citation Nr: 21077059 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-09 820 DATE: December 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of left ear hearing loss for VA compensation purposes. 2. The Veteran's current diagnosis right ear hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to the Veteran's in-service noise exposure. 3. The Veteran's tinnitus is not related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 5107(b); 38 C.F.R. §§ 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, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to May 1978 and some service in the Naval Reserve from his separation until March 1981. This matter comes before the Board of Veterans Appeals (Board) from a decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2017 VA Form 9, the Veteran timely perfected his appeal to the Board. The Veteran requested a Board hearing. The Veteran was scheduled for a Board hearing October 2021. The Veteran failed to appear for his hearing. The Veteran did not provide any cause for failing to appear for his hearing. The Board deems the Veteran's hearing request as withdrawn. 38 C.F.R. § 20.704. SERVICE CONNECTION In order to establish direct service connection, three elements must be established. These elements are: "(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," which is often referenced as the "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability, there is no valid claim for service connection; an appellant's belief that he or she is entitled to some sort of benefit simply because he or she had a disease or injury while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). In addition, certain chronic diseases, including sensorineural hearing and tinnitus, are presumed to have been incurred in or aggravated by service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. Concerning hearing loss, for VA purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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. Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since November 1, 1967, those standards have been set by the International Standards Organization (ISO). In Hensley, the United States Court of Appeals for Veterans Claims (Court) explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. 1. Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to his to his service. The Veteran's DD-214 lists the Veteran's military occupational specialty (MOS) as aircrew member. Given the Veteran's MOS had a high likelihood of noise exposure, the Board concedes that the Veteran was exposed to hazardous noise. The Veteran underwent several audiological tests throughout his service. In March 1974 the Veteran underwent an entrance examination. His puretone threshold were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 - 0 LEFT 10 0 0 - 5 In August 1974, the Veteran underwent another audiological examination. His puretone threshold were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 0 5 LEFT 0 0 0 0 0 In August 1976, the Veteran underwent another audiological examination. His puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 0 10 LEFT 5 5 5 5 10 In May 1978, the Veteran underwent a separation audiological examination. His puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 5 25 LEFT 15 15 10 10 20 The Veteran underwent an annual flight examination related to his reserve service in February 1980. His puretone threshold were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 15 5 5 LEFT 5 5 5 5 5 The Veteran's service treatment records note that in April 1978, the Veteran was grounded for right ear block. In May 1978, service treatment records noted that the Veteran had taken medication for two days. The service provider noted that the Veteran was much improved with the ears were clear of fluids. The provider noted that the Veteran was asymptomatic. The Veteran underwent a VA audiological examination in February 2016. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 45 50 65 LEFT 15 15 25 20 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. The examiner noted that there was no positive threshold in-service between 500 and 6000 Hz in either ear. The examiner opined that the Veteran's bilateral hearing loss is less likely as not a result of an event in military service. The examiner reasoned that the Veteran reported his MOS was radar operator and aircrew member and his DD-214 indicates his MOS was aviation crewman. The examiner noted that his MOS is considered a high probability for noise exposure. The Veteran reported post-service occupational noise of working with some exposure to loud machinery, was a private pilot (with the use of some ear protection). The reported recreational noise exposure included shooting, car races, and loud music with some use of hearing protection. The Veteran reported he first notice his hearing loss 6 to 7 years prior to the examination, which was 30 plus years after service discharge. The examiner explained that the Veteran entered service without hearing loss and separated from service with normal hearing, with some mild hearing loss at 6000 Hz in the left ear. The examiner stated the hearing loss is not considered permanent considering a 1980 examination found the Veteran had normal hearing in both ears. The examiner noted the Veteran was grounded in April 1978, the Veteran was grounded for a right ear block, but it reported in May 1978 that it had improved and appeared to be asymptomatic. The examiner specifically explained that there were no significant threshold shifts, indicative of a noise injury when comparing the 1974 and 1980 examinations. The examiner stated that there is no objective evidence to support a military related noise injury in-service. The examiner further stated the available treatment records were silent for any complaint, diagnosis, or treatment for the claimed condition. The examiner's findings were based on a review of the evidence, to include the service treatment records and diagnostic testing. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that the Veteran current right ear hearing loss is related to service. The Board finds this opinion is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Initially, the Board finds that the Veteran does not have current disability of left ear hearing loss for compensation purposes. Notably, the Veteran's left ear puretone thresholds was not at least 26 in at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000. The Veteran's left ear speech discrimination score was not less that 94 percent. Therefore, the Veteran does not have left ear hearing loss for the purposes of VA compensation and service connection cannot be granted for left ear hearing loss. See 38 C.F.R. § 3.385; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board further finds that servicer connection for right ear hearing loss is not warranted. The Veteran does have hearing loss for VA compensation purposes in the right ear. As noted above, the Veteran was exposed to hazardous noise in-service. However, the Board finds that the only probative evidence in the record is that the Veteran's right ear hearing loss was not related to service. Specifically, the February 2016 VA audiologist noted that that there was no noise induced injury in the right ear as evidenced by the lack of puretone shift in service. Further, the Board finds that the Veteran is not entitled to presumptive service connection for his right ear hearing loss. There is no evidence in the record that shows that the Veteran's right ear hearing loss was chronic in-service or began within one year after service; the first indication of right hearing loss in the record was in February 2016. The Board considered the Veteran's representative's December 2021 arguments. First, the Veteran's representative argued that the February 2016 VA examiner relied on the lack of evidence of hearing loss at separation to support his opinion, which is antithetical to the Court's ruling in Hensley. The Board finds that is a mischaracterization of the February 2016 VA examiner's rationale. The examiner did note the Veteran left service with normal hearing, but the negative opinion itself was based on a lack of a puretone threshold shift, which was evidence of no noise induced injury. The Board also considered the two summaries and citations of studies submitted by the Veteran's representative. The Board finds these studies are not applicable to the Veteran's case. Both the studies relate to delayed onset hearing loss. In the Veteran's case, the Board while found there was exposure to hazardous noise, there was no noise injury. In order for service connection to be granted the evidence must demonstrate that noise exposure caused the hearing loss and without evidence of a noise induced injury, such as a puretone threshold shift, service connection cannot be granted. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss is related to service. The Veteran does not have a current left ear hearing loss disability for VA compensation purposes and his right ear hearing loss is not etiologically related to service. As the evidence persuasively weighs against the Veteran's claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection for bilateral hearing loss is denied. 2. Tinnitus The Veteran contends his tinnitus is related to his service. As noted above, the Board concedes that the Veteran was exposed to hazardous noise while in-service. In February 2016, the Veteran underwent a VA audiological examination. During the examination, the Veteran reported he had constant tinnitus. The Veteran reported the onset of the tinnitus 6 to 7 years prior with no specific circumstances occurring at onset. The examiner opined that the tinnitus is less likely than not caused by or a result of military noise exposure. The examiner reasoned that the Veteran reported his tinnitus onset was 6 to 7 years prior to the examination, 30 plus years after military discharge. The examiner explained that tinnitus can be a symptom of noise-induced auditory injury, if there is objective evidence to support the presence of a noise injury. Tinnitus is also a know symptom of a range of auditory system disorders that include simple cerumen impaction of the external auditory canal, middle ear disease such as otosclerosis or Eustachian tube dysfunction, cochlear abnormalities such as Meniere's disease, and auditory nerve pathology. The examiner further noted that non-auditory system disorders can cause tinnitus including, but not limited to, vascular anomalies, myoclonus, hypertension, head and neck tumors, head or neck injuries, and TMJ disorder. The examiner explained there was no evidence of a significant permanent threshold shift indicating a military related noise injury. Further, the Veteran's service treatment records do not indicate any complaint, diagnosis or treatment of tinnitus. The examiner's findings were based on a review of the evidence, to include the service treatment records and diagnostic testing. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that the Veteran current tinnitus is related to service. The Board finds this opinion is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board finds that Veteran currently has tinnitus. As noted above, the Veteran was exposed to hazardous noise in-service. However, the Board finds that the only probative evidence in the record is that the Veteran's tinnitus was not caused by his exposure to hazardous noise, because the September 2016 opined that there was no evidence of a noise induced injury that would cause tinnitus. The Veteran did not provide any evidence as to whether his tinnitus began in-service. Notably, the Veteran specifically stated in the September 2016 VA examination that his tinnitus began 6 to 7 years prior to the examination, decades after his service. As such, the Board finds that there is no evidence that the Veteran's tinnitus began within one year of leaving service or was noted in-service and continued to the present day. Thus, service connection for tinnitus is not warranted. In light of the above, the Board finds that the evidence persuasively weighs against a finding that the Veteran's tinnitus is related to service, and therefore the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim for service connection for tinnitus is denied. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.