Citation Nr: 21016136 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-61 368 DATE: March 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Although the Veteran currently has a bilateral hearing loss disability, the evidence of record does not show that this disability is related to his claimed in-service noise exposure. 2. The evidence of record does not show that the onset of the Veteran’s tinnitus was due to active duty service or result from disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1964 to April 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2020. A transcript of the hearing is in the Veteran’s file. Service Connection 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, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(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” the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For 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, 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 absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran contends that he was exposed to noise while in service. The Veteran’s military occupational specialty (MOS) was military policeman. The Veteran notes that he underwent frequent periods of weapons training and was exposed to loud noises, with no hearing protection. Service treatment records are negative for complaints or findings of hearing loss and tinnitus. The Veteran’s April 1964 entrance examination contains no audiometric findings, as the testing machine was noted to be broken. After ASA-ISO conversion, findings from the Veteran’s March 1966 separation examination revealed pure tone thresholds bilaterally of 15, 10, 10, and 5 decibels at 500, 1000, 2000, and 4000 Hertz (Hz) respectively. A private audiological report, dated in April 2013, showed that the pure tone thresholds in his right ear were 15, 10, 35, 55 and 65 decibels, at 500, 1000, 2000, 3000 and 4000 Hz respectively. The pure tone thresholds in his left ear were 5, 15, 35, 55 and 70+ decibels, at 500, 1000, 2000, 3000 and 4000 Hz respectively. Speech recognition scores were 96 percent for the right ear and 84 percent for the left ear. (It is unclear whether the testing was performed using the Maryland CNC speech discrimination test). He was diagnosed with moderate, high frequency sensorineural hearing loss. The Veteran underwent a VA audiological examination in March 2015. The Veteran reported that it was hard to understand the television, at times, and that he could not understand things when there was background noise. He was diagnosed with bilateral sensorineural hearing loss. The VA examiner opined that it was not at least as likely as not that the Veteran’s hearing loss was caused by or a result of an event in military service. The VA examiner stated that the Veteran’s MOS, listed as Military Police on his DD Form 214, had a moderate probability for noise exposure. The Veteran had reported military noise exposure, to include carrying a 45 pistol and firing M14 at a firing range with no reported use of hearing protection devices. Occupational noise exposure included work as a policeman and security officer with reported use of hearing protection devices when necessary. Recreational noise exposure included hunting with no reported use of hearing protection devices. The VA examiner noted that the Veteran’s entrance examination indicated a whispered voice test, which did not provide reliable, calibrated, frequency-specific information regarding hearing sensitivity, and that “machine broke” was noted across the audiogram section of the paper work, so no frequency specific information was available at entrance. The exit examination indicated normal hearing, bilaterally, which indicated that there was no noise injury while in service. There was no objective evidence (i.e., service audiometric results) to support the claim of military related noise injury (i.e., noise induced hearing loss). Also, available service treatment records were silent for any complaints, diagnoses, or treatment of the claimed condition. Based on the objective evidence, there was no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of the Veteran’s military service, including noise exposure. The Veteran also reported constant, bilateral tinnitus, described as a roaring sound. The Veteran reported that the onset of his tinnitus was 2-3 years ago, with no specific incident or circumstance occurring at onset. The VA examiner opined that the Veteran’s current complaint of tinnitus was less likely than not a result of military noise exposure. The VA examiner stated that the exit examination showed normal hearing, bilaterally, indicating no noise injury was incurred while in service. It was noted that tinnitus is typically a symptom of noise-induced hearing loss, and, in this case, there was no objective evidence for military-related noise injury, including tinnitus. Furthermore, the Veteran reported that the onset of his tinnitus was 2-3 years ago, which was many years after his time in service. Based on the objective evidence and the Veteran’s reported date of tinnitus onset, there was no evidence on which to conclude that the Veteran’s current complaint of tinnitus was caused by or a result of the Veteran’s military service, including noise exposure. A private medical note from a private doctor, B.S., dated in November 2020, reflected that the Veteran had received a hearing evaluation in September 2020. Audiogram results showed that the Veteran’s the pure tone thresholds in his right ear were 20, 25, 50, 70 and 80 decibels, at 500, 1000, 2000, 3000 and 4000 Hz respectively. The pure tone thresholds in his left ear were 20, 20, 50, 65 and 85 decibels, at 500, 1000, 2000, 3000 and 4000 Hz respectively. The private doctor noted that the Veteran had stated that his hearing challenges began after joining the military and then being exposed to loud sounds without being issued proper hearing protection. The Veteran had noted that his hearing problems had progressively gotten worse over time and that he had not been exposed to loud noises since discontinuing military service. The private doctor stated that the results suggested that the Veteran suffered from sensorineural hearing loss, bilaterally, with below average word recognition scores. These findings coincided with the Veteran’s initial patient interview and suggested that his hearing loss could be attributed to his time spent in the military. At the Veteran’s December 2020 VA Board hearing, the Veteran stated that he was a military policeman while in service. He noted that he did not have hearing protection. The Veteran noted that he worked at a shooting range for 2 days, and was around loud weapons noise. He also noted that he began to have trouble with hearing loss and tinnitus, described as ringing in his hears, around 2005. After a review of the record, the Board finds that the preponderance of the evidence is against the claims of service connection for bilateral hearing loss and service connection for tinnitus. The Veteran is currently diagnosed with bilateral sensorineural hearing loss for VA purposes under 38 C.F.R. § 3.385. However, the Veteran was not treated for hearing loss during service, nor were any hearing problems reported. The evidence does not show that the Veteran demonstrated hearing loss to a compensable degree within one year of discharge from active duty. The most persuasive expert medical opinion evidence reflects that the March 2015 VA audiologist did not find that the Veteran’s current hearing loss and tinnitus were related to service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). The audiologist considered the medical evidence of record and the Veteran’s lay statements, and included medical literature pertinent to the claim. This rationale makes the opinion persuasive and the most probative evidence as to the nexus element of the claims. Conversely, while the Board acknowledges the November 2020 private medical opinion regarding the relationship between the current condition and service, the Board finds that language of the opinion, which notes that the Veteran’s hearing loss “could” be attributed to his military service, is too speculative to establish a medical nexus. It has been held that the use of such equivocal language makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The Board acknowledges the Veteran’s contentions that his hearing loss and tinnitus are due to in-service noise exposure. The Board does not doubt the credibility of the Veteran’s reports of being exposed to noise during service as the Veteran can attest to factual matters of which he had first-hand knowledge and noise exposure is consistent with his circumstances of service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a lay person, the Veteran does not have specialized training sufficient to render such an opinion as to the etiology of hearing loss and tinnitus reported and diagnosed many years after the noise exposure, as here. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, the Veteran is competent to state when he first noted tinnitus, but in this case, he reported that tinnitus began several decades after service, and he is not competent to provide a medical opinion linking tinnitus noted years after service with such service itself. As such, the preponderance of the evidence is against the claims of service connection; there is no doubt to be resolved; and service connection for bilateral hearing loss and service connection tinnitus are is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.