Citation Nr: 21042220 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-95 246 DATE: July 12, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's right hearing loss disability was noted at entry to service and the evidence does not support a finding that it was aggravated by service. 2. Actual left ear hearing loss disability was not manifest during service or within one year of separation. 3. Tinnitus was not manifest during service, and an organic disease of the nervous system was not manifest within one year of separation. Tinnitus is not related to service. CONCLUSIONS OF LAW 1. A preexisting right ear hearing loss disability was not aggravated by service. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306, 3.385. 2. Left ear hearing loss disability was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. 3. Tinnitus was not incurred in or aggravated by service and an organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to March 1977. 1. Entitlement to service connection for a bilateral hearing loss disability Generally, to establish service connection an Appellant 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be established for an organic disease of the nervous system if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." 38 C.F.R. § 3.303 (b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306 (a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Veteran contends that his bilateral hearing loss disability was aggravated by noise exposure during his active service. Hearing loss was noted on the Veteran's entrance examination and again at separation. At entrance to active duty, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 0 - 45 LEFT 25 25 0 - 0 At separation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 30 30 LEFT 40 20 10 10 20 The Veteran received a VA audiological examination in August 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 30 50 LEFT 20 20 40 40 50 This shows a current hearing loss disability for VA purposes. The examiner opined that the Veteran's preexisting hearing loss disability was not aggravated by active service, despite higher threshold readings on the separation examination, because the higher readings were simply a fluctuation in the Veteran's hearing, as confirmed by post-service audiological examinations which show lower thresholds. Further, the examiner noted that the Veteran's hearing loss is mixed, whereas noise-induced hearing loss causes a sensorineural hearing loss only. Specifically, noise-induced hearing loss causes a notch pattern that is not seen on the Veteran's audiograms. For these reasons, the examiner found that the Veteran's hearing loss disability is consistent with a hearing loss with a medical etiology, not noise exposure and that the disability was not aggravated during his service. The Board finds this opinion to be probative, as it is thorough and based on an accurate and complete history. The issue here is whether there was aggravation shown during service. While the hearing thresholds on the separation examination were higher than those at entrance, post-service examinations show lower thresholds. The August 2013 examiner stated that these fluctuations are consistent with the natural course of mixed hearing loss with a medical etiology and do not show aggravation. Therefore, the presumption of aggravation is not applicable, as aggravation during service has not been shown. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b). Accordingly, service connection for a bilateral hearing loss disability is not warranted, as the condition was noted at entry into service and was not shown to be aggravated by service. Moreover, the weight of competent medical opinion is that that the current hearing loss was not attributable to noise exposure in service. Since 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); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. Regrettably, for these reasons, the claim is denied. In regard to the left, hearing loss disability was not noted at entrance. We also note a reading of 40 at 500 Hertz at separation. However, such result was never repeated, to include on VA examination. This evidence reflects that the reading at separation did not reflect actual hearing loss disability and was either a fluctuation or an aberrant reading. The in-service finding is legitimately questioned. 38 C.F.R. § 3.303. In sum, in regard to the left, hearing loss disability was not manifest during service and the remote finding of hearing loss disability is unrelated to service. 2. Entitlement to service connection for tinnitus Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Tinnitus is a chronic disease, and the concept of continuity of symptomatology is applicable in this case. Fountain v. McDonald, 27 Vet. App. 258, 27172 (2015). The appellant has reported that he currently has tinnitus, which he is competent to diagnose. Jandreau v. Nicholson, 492 F.3d at 1377; Charles v. Principi, 16 Vet. App. 370, 374 (2002). The appellant reports that he has tinnitus that he believes is related to service. However, the appellant's statements regarding the onset of his tinnitus have been vague and inconsistent. At separation, he reported no ear problems and no ringing in the ears. At his August 2013 audiological examination, the Veteran reported that his tinnitus had begun a "long time ago" but he could not say exactly when. The examiner opined that the Veteran's tinnitus was less likely than not related to his active service because the Veteran denied tinnitus at separation, and tinnitus is usually associated with hearing loss. Rather, the Veteran's tinnitus is most likely due to his bilateral hearing loss, which is not service-connected. The most probative evidence weighs against a finding that the tinnitus manifested in service. Service treatment records do not reflect any complaints of tinnitus, and the Veteran denied any ear trouble on his separation examination. As noted above, the Veteran's statements as to onset of the tinnitus are inconsistent. His denial of ear trouble at separation and his inconsistent statements regarding onset render any statement that tinnitus manifested in service not credible. Here tinnitus was not "noted" during service. Rather, though hearing loss was noted, tinnitus was not, and he denied a pertinent history. Clearly, he did not have manifestations sufficient to identify or suggest a chronic disease entity during that time. It necessarily follows that the normal findings and denial of pertinent pathology is inconsistent with an assertion of continuity. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309. Since 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); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Creegan 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.