Citation Nr: 21007900 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-49 941A DATE: February 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a bilateral hip disability, to include a gynecological condition, as secondary to service-connected residual infertility and ruptured left fallopian tube secondary to ectopic pregnancy associated with chlamydia, is denied. FINDINGS OF FACT 1. The Veteran does not have a bilateral hearing loss disability as defined by VA regulations. 2. The Veteran’s tinnitus 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 an in-service injury or disease. 3. The Veteran does not have a current diagnosis of a hip disability or gynecological condition other than service-connected residual infertility and ruptured left fallopian tube secondary to ectopic pregnancy associated with chlamydia; the evidence weighs against a finding of a current disability at any time relevant to the period under appeal other than for which service connection is already in effect. 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. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a bilateral hip disability, to include a gynecological condition, 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 October 1987 to April 1993. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Subsequently, the Board remanded the matter for further development in December 2019. The issues before the Board in December 2019 included entitlement to service connection for a back disability and an acquired psychiatric disorder, to include depression. However, the Agency of Original Jurisdiction (AOJ) granted service connection for major depressive disorder and lumbosacral strain in an August 2020 rating decision. Thus, as this represents a full grant of the benefits sought on appeal with respect to these issues, the matters are no longer in appellate status, and will not be further addressed herein. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection on a direct basis, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Bilateral Hearing Loss 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. A February 2013 VA audiology report reflects that the Veteran’s pure tone test results revealed bilateral hearing within normal limits and excellent word recognition ability. A January 2020 VA audiology examination revealed that the Veteran’s pure tone thresholds, in decibels, were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 20 20 25 10 10 LEFT 15 20 25 15 10 Speech audiometry, using the Maryland CNC test, revealed bilateral speech recognition ability of 100 percent. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran had a bilateral hearing loss disability for VA purposes during the appellate period. Although cognizant that the representative has contended that the findings from this examination reflected hearing loss, the findings from the January 2020 VA examination do not demonstrate bilateral hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The Board does not discount the difficulties the Veteran has with her auditory acuity. However, in order to be considered for service connection, a claimant must first have a disability, and in the case of hearing loss, the disability must meet a certain threshold that has not been shown. In the absence of contradictory evidence that the Veteran does have bilateral hearing loss for VA purposes, service connection is not warranted. Id.; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178–80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Board notes that the Veteran is competent to report current problems with decreased auditory acuity. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994). However, the presence of a hearing loss disability for VA purposes is not a simple medical condition capable of lay observation or diagnosis; rather, such a finding requires professionally administered test results satisfying the criteria set out at 38 C.F.R. § 3.385. In the absence of such evidence, service connection for bilateral hearing loss must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Tinnitus Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated “chronic disease” in service (or within the presumptive period under § 3.307), or “continuity of symptoms” of such a disease after service, the disease shall be presumed to have been incurred in service. Walker v. Shinseki, 708 F.3d 1331, 1335–37 (Fed. Cir. 2013). Tinnitus is an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) would apply if tinnitus is noted or shown in the record. Walker, 708 F.3d at 1338–39; see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Service connection for an enumerated “chronic disease” such as tinnitus, listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The medical evidence shows that the Veteran has a current diagnosis of tinnitus. Thus, the question before the Board is whether the Veteran’s tinnitus is related to her military service. The Veteran contends that while stationed at Strike Fighter Weapons School she worked in the administrative office, which was located next to the hanger where F/A-18s would take off and land. She alleges that she would go into the hanger every day and was not afforded hearing protection. The Board find the Veteran’s statements to be credible and probative as to her in-service noise exposure. Acoustic trauma is consistent with the circumstances and conditions of her service, and therefore, satisfies the in-service injury element of service connection. Service treatment records do not contain any complaints of tinnitus during service nor was there a diagnosis made. Therefore, the evidence preponderates against chronicity in service. Thereafter, during a February 2013 audiology assessment, the Veteran reported having ringing in the ears; she was diagnosed with tinnitus. No earlier complaints of tinnitus or a formal diagnosis are contained in the Veteran’s medical records. During the August 2019 Board hearing, the Veteran reported that her tinnitus began “a couple of years” after separation from service. During the January 2020 VA audiological examination, the Veteran was questioned about tinnitus and indicated that her tinnitus began 10-20 years ago. The Board notes that the record shows that the Veteran was not diagnosed with tinnitus until several years after separation from service and well outside the applicable one-year presumptive period. The Board acknowledges that the Veteran is competent to report the onset of her tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002). As a result, the Veteran’s credible lay reporting, despite the inconsistencies, still indicates that the onset of her tinnitus falls well outside of any presumptive considerations. Additionally, the evidence also established that there was no continuity of symptomology following discharge from service. Service connection for tinnitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s tinnitus and military service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The January 2020 VA examiner noted that during a February 2013 VA audiology consult the Veteran reported that the frequency of her tinnitus was “rare,” occurred less than 10 percent of the time. Additionally, during the VA examination the Veteran reported that her tinnitus became constant in the last two to three years. The examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. She explained that tinnitus is a normal phenomenon and according to a medical study, normal tinnitus is experienced by most people without hearing loss less than once a week. She reasoned that because the Veteran’s tinnitus in 2013 fits this criterion, it would be considered normally occurring at that time. She further reasoned that because the Veteran reported that her tinnitus became more constant two to three years ago, her true tinnitus symptoms would be considered to have an onset of two to three years ago. The examiner reasoned that medical literature does not support a basis for the existence of delayed-onset tinnitus. Thus, the examiner concluded that since the Veteran’s military occupational specialty (MOS) had a low probability of hazardous noise exposure, she had normal hearing at separation from service, and her regularly occurring tinnitus began two to three years ago, there is no nexus to connect her current tinnitus to military noise exposure. She further added that the Veteran’s tinnitus is probably due to her hearing loss symptoms (a condition which the Board notes that she is not service-connected for). The examiner’s opinion is probative, because it is based on an accurate medical history that is consistent with the medical and lay evidence above and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the most probative evidence of record is the January 2020 VA examination, as it is the only medical opinion of record. Consequently, the Board adopts the opinion of the VA examiner, who ultimately found that the Veteran’s tinnitus was not directly related to military service. Neither the Veteran nor her representative have presented or identified any contrary medical opinion or treatment that supports her claim on a direct basis. Similarly, while the Veteran believes that her tinnitus is related to military service, she is not competent to provide a nexus opinion in this case. The Veteran, as a layperson, is not competent to speak to such medically complex matters, such as the etiology of the claimed disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, the Veteran is competent to diagnosis herself as having tinnitus; which she has indicated began several years after service. She is not competent, as a layperson, however, to state that the post-service experience of tinnitus is due to in-service noise exposure. Consequently, the Board gives more probative weight to the opinion of the January 2020 VA examiner. In sum, the Board finds that the preponderance of the evidence is against this service connection claim, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55–57; 38 C.F.R. § 3.102. Bilateral Hip Disability After considering all of the evidence of record, to include that set forth below, the Board concludes that the Veteran does not have a current diagnosis of a hip disability or a gynecological condition other than her already service-connected residual infertility and ruptured left fallopian tube secondary to ectopic pregnancy associated with chlamydia, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A review of the record illustrates that the Veteran reported experiencing hip pain; however, there is no diagnosis of a hip disability or a gynecological condition other than already service-connected residual infertility and ruptured left fallopian tube. The January 2020 VA examiner noted that the Veteran did not have a current hip condition. Additionally, the examiner noted a diagnosis of residual infertility and ruptured left fallopian tube secondary to ectopic pregnancy associated with chlamydia, which the examiner indicated was a correction of the previous diagnosis (residual infertility associated with history of chlamydia) in order to include the full scope of residuals associated with chlamydia. The Board finds that the VA examinations are probative as the VA examiner conducted a physical examination and review the Veteran’s claims file. Lastly, the Board notes that there is no indication that the Veteran’s symptoms, to include pain, have caused her any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The existence of a current disability is the cornerstone of a claim for service connection and VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the Veteran has not been diagnosed with a hip disability or a gynecological condition other than her already service-connected residual infertility and ruptured left fallopian tube. Additionally, the evidence of record does not indicate, and the Veteran does not contend, that her symptoms cause functional impairment or functional limitation at any point during the appeal period. Therefore, the Board cannot grant her claim under any theory of entitlement. While the Veteran’s application for service connection illustrates that the Veteran believes she has a current disability for VA purposes, she is not competent to provide a diagnosis in this case. The issue is medically complex as it requires the interpretation of diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. (CONTINUED ON NEXT PAGE) The Board does not question the Veteran’s sincerity in her belief that service connection is warranted for a hip disability or a gynecological condition other than her already service-connected residual infertility and ruptured left fallopian tube. However, without evidence of current disability or symptoms causing functional impairment of earning capacity, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55–57; 38 C.F.R. § 3.102. As such, service connection is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.