Citation Nr: 21040726 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-24 740 DATE: July 6, 2021 ORDER Entitlement to service connection for tinnitus is denied. Entitlement to an initial compensable disability rating for left hear hearing loss with tympanosclerosis is denied. FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran does not have tinnitus that his related to active military service. 2. The Veteran demonstrated, at worst, Level I hearing acuity in his left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 2. The criteria for an initial compensable disability rating for left ear hearing loss have not been met. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from August 1988 to August 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded the claims of entitlement to service connection for a disorder of the left foot/ankle, a biceps disorder, and tinnitus. The Board also remanded the claim of entitlement to an initial compensable rating for left ear hearing loss for further development. In an April 2021 rating decision, the RO granted service connection for a left ankle and left arm disability previously on appeal, constituting a full grant of the benefits sought. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). In addition, such chronic diseases are presumed to have been incurred in 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). 1. Entitlement to service connection for tinnitus The Veteran generally contends that he has tinnitus that is due to his active military service. Specifically, the Veteran reported that he believed that his tinnitus incurred in service and/or was caused by ground equipment engines and aircraft. Service treatment records (STRs) do not reflect treatment, diagnosis, or symptomatology of tinnitus. However, the Board notes that during service, the Veteran was diagnosed with bilateral tympanosclerosis. The Board also notes that in April 2014, the RO granted service connection for left ear hearing loss and denied service connection for right ear hearing loss. In a March 2014 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ), the Veteran denied having recurrent tinnitus. Similarly, in a March 2014 Ear Conditions DBQ, the Veteran denied tinnitus. The examiner noted that the Veteran had been a fireman for twenty years and that he had no history of recreational noise exposure. In a February 2015 Hearing Loss and Tinnitus DBQ, the Veteran again did not report having recurring tinnitus. A February 2021 VA audiological examination report reflects that the Veteran did not report recurrent tinnitus. However, he reported "echoing" sounds in both ears that happen "here and there." He reported that when he does a hard run (three miles all out), his ears block. The audiologist opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, she reported that he denied tinnitus in March 2014 and February 2015. On the current date of examination, the Veteran's description of symptoms did not meet the Dauman and Tyler (1992) definition of tinnitus cited in the Tinnitus Handbook (Tyler). The Veteran reported transient ear noise that occurs in the general population without auditory damage or pathology. She reported that the transient ear noise is not consistent with noise-induced tinnitus and is less likely than not related to military noise exposure. She concluded that etiology of tinnitus is not warranted when symptomatology and clinical examination findings do not indicate a diagnosis of recurrent tinnitus. The weight of the above evidence reflects that the Veteran has not had a diagnosis of tinnitus during the pendency of the claim. While a "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service-connected disabilities"), here the evidence does not reflect any diagnosis or treatment for tinnitus. Specifically, the Veteran denied recurrent tinnitus during the March 2014, February 2015, and February 2021 audiological examinations. Additionally, the description of his symptoms was not determined by the 2021 audiologist to be symptoms of tinnitus. Similarly, VA treatment records and statements by the Veteran prior to the February 2021 examination, do not reflect a diagnosis or symptoms of tinnitus. As the Veteran has not had tinnitus during the pendency of this claim, entitlement to service connection is not warranted. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) ("Without a current disability, of course, there can be no service connection and, thus, no disability compensation"). Based on the foregoing, the preponderance of the evidence shows that the Veteran does not have a current diagnosis of tinnitus and denied having recurrent tinnitus multiple times on various examinations. Therefore, because a preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. Accordingly, entitlement to service connection for tinnitus is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Increased Rating Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 2. Entitlement to an initial compensable disability rating for left hear hearing loss with tympanosclerosis The Veteran is currently service connected for left hear hearing loss with tympanosclerosis, rated as noncompensable. He contends that his left ear hearing loss warrants a compensable disability rating. Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA's rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. If impaired hearing is service-connected in only one ear, the nonservice-connected ear is a Roman numeral designation of I. 38 C.F.R. § 4.85 (f). There are certain exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a) (2019). When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). During the March 2014 VA audiological examination, the Veteran reported that he tends to favor his right ear and often needs to ask for repetition. On audiometric testing, pure tone thresholds, in decibels, were as follows: Hertz 1000 Hz 2000 Hz 3000 Hz 4000 Hz AVG Left 20 20 15 30 21 Speech recognition, using the Maryland CNC Word List, was 92 percent for the left ear. Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluation reveals Level I hearing loss in the left ear and Level I for the right ear, using a Roman numeral designation for the non-service connected right ear. 38 C.F.R. § 4.85 (f). Combining Level I hearing for the left ear and Level I of the right ear according to Table VII reveals a noncompensable disability rating. 38 C.F.R. § 4.85, DC 6100. In a January 2015 statement, the Veteran reported that his left ear is getting worse. During the February 2015 VA audiological examination, the Veteran reported complaint of chronic itching as well as recurrent fullness and pressure in his left ear. On audiometric testing, pure tone thresholds, in decibels, were as follows: Hertz 1000 Hz 2000 Hz 3000 Hz 4000 Hz AVG Left 15 15 15 25 18 Speech recognition, using the Maryland CNC Word List, was 92 percent for the left ear. Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluation reveals Level I hearing loss in the left ear and Level I for the right ear, using a Roman numeral designation for the non-service connected right ear. 38 C.F.R. § 4.85 (f). Combining Level I hearing for the left ear and Level I of the right ear according to Table VII reveals a noncompensable disability rating. 38 C.F.R. § 4.85, DC 6100. During the February 2021 VA audiological examination, the Veteran did not report any new complaints. The audiologist noted that the Veteran's hearing loss did not impact ordinary conditions of daily life, including ability to work. On audiometric testing, pure tone thresholds, in decibels, were as follows: Hertz 1000 Hz 2000 Hz 3000 Hz 4000 Hz AVG Left 10 25 20 35 23 Speech recognition, using the Maryland CNC Word List, was 94 percent for the left ear. Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluation reveals Level I hearing loss in the left ear and Level I for the right ear, using a Roman numeral designation for the non-service connected right ear. 38 C.F.R. § 4.85 (f). Combining Level I hearing for the left ear and Level I of the right ear according to Table VII reveals a noncompensable disability rating. 38 C.F.R. § 4.85, DC 6100. The Board notes that the VA audiological examination reports noted above describe the effects of the Veteran's hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran contends that his current left ear hearing loss presented a greater degree of impairment than currently assigned, and that the objective evidence contained within the record supported a compensable disability rating. However, the assigned rating for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). While the Board acknowledges the Veteran's hearing difficulties, the rating criteria dictates a noncompensable disability rating based on his certified test results. As the 2014, 2015 and 2021 audiograms all resulted in a noncompensable ratings for left ear hearing loss, a compensable rating is not warranted for left ear hearing loss. In addition, the Veteran's complaints of difficulty hearing individuals are manifestations of difficulty hearing or understanding speech, which are contemplated by the schedular criteria for hearing loss. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which are contemplated by the schedular rating criteria for hearing loss). Thus, the schedular criteria adequately address the Veteran's disability, and there is no indication that the Veteran's hearing loss is manifested by symptoms not contemplated by the rating criteria under Diagnostic Code 6100. (CONTINUED ON NEXT PAGE) For the foregoing reasons, an initial compensable rating for left ear hearing loss with tympanosclerosis is not warranted. 38 C.F.R. § 4.85, DC 6100. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.