Citation Nr: 22045274 Decision Date: 08/10/22 Archive Date: 08/10/22 DOCKET NO. 17-28 582A DATE: August 10, 2022 ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The evidence shows right ear hearing loss disability for VA compensation purposes; symptoms of right ear hearing loss were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service; right ear hearing loss is not otherwise etiologically related to active service. 2. The evidence shows left ear hearing loss disability for VA compensation purposes; symptoms of left ear hearing loss were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service; left ear hearing loss is not otherwise etiologically related to active service. 3. The evidence shows current disability of tinnitus; symptoms of tinnitus were not chronic during service, were not continuous since service, and did not manifest to a compensable degree within one year of service; the current tinnitus is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from January 1988 to January 1992. The Board denied the claims for service connection for right and left ear hearing loss and tinnitus in an October 2019 decision. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2021 Joint Motion for Partial Remand (JMPR), filed by the parties and approved by the Court, the portion of the Board decision denying service connection for right and left ear hearing loss and tinnitus were vacated and remanded to the Board for further adjudication consistent with the JMPR. In a May 2021 decision, the Board remanded the issues of service connection for right and left ear hearing loss and tinnitus for the Veteran to undergo a VA examination and for relevant medical records. The Veteran underwent a VA audiology examination in April 2022 and updated VA treatment records have been associated with the record. In May 2021 and November 2021 letters, VA requested the Veteran complete appropriate authorization forms to allow VA to obtain treatment records on his behalf. The Veteran did not response to these letters. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Legal Criteria Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. The Veteran is currently diagnosed with right and left ear hearing loss and tinnitus (as organic diseases of the nervous system), which are "chronic diseases" under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). 1. Service connection for right ear hearing loss 2. Service connection for left ear hearing loss 3. Service connection for tinnitus The Veteran asserts that he was exposed to hazardous noise during service when performing field operations to test the medical unit's readiness, and that during these operations loud generators were used to supply power. The Veteran also states he was exposed to noise from other artillery and small arms fire. See August 2013 Statement of Support of Claim. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has recognized that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Initially, the Board finds that the evidence shows right and left ear hearing loss disabilities that meet the VA regulatory criteria at 38 C.F.R. § 3.385. See April 2022 VA examination report. The April 2022 VA examination report also reflects a current disability of tinnitus. After a review of all the lay and medical evidence of record, the Board finds that the persuasive weight of the evidence shows that symptoms of hearing loss and tinnitus were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of separation from active service in January 1992. Service treatment records do not reflect any in service complaints, symptoms, or findings of hearing loss and/or tinnitus in either ear during service. An October 1991 service separation examination found the Veteran's hearing in both ears to be clinically normal. On the corresponding October 1991 Report of Medical History, the Veteran denied a history of hearing loss. Accordingly, the evidence does not demonstrate chronic symptoms of hearing loss or tinnitus during active service. The lay and medical evidence persuasively weighs against a finding of continuous symptoms of hearing loss and tinnitus since service separation, including to a compensable degree within one year of service; therefore, presumptive service connection under the provisions of 38 C.F.R. § 3.303(b) is not warranted based on either "chronic" in-service or "continuous" post service symptoms. As discussed above, service treatment records did not indicate any history or findings or diagnoses for hearing loss or tinnitus during service. The earliest evidence of hearing loss and tinnitus is not indicated until 2010 in an informal June 2010 claim for service connection, over 18 years after service separation and over 17 years outside of the presumptive period. Furthermore, VA treatment records do not reflect any complaints, symptoms, or findings for hearing loss and/or tinnitus through May 2022. Instead, the Veteran repeatedly denied symptoms or a history of hearing loss. See e.g., May 2018 VA treatment record; February 2021 VA treatment record; September 2021 VA treatment record. The earliest diagnosis for right and left ear hearing loss and tinnitus is not shown until the April 2022 VA examination report. On the question of direct service connection, the Board finds that the persuasive weight of the evidence shows that right and left ear hearing loss and tinnitus did not have onset during service and are not otherwise etiologically related to service. The persuasive weight of the evidence demonstrates that right and left ear hearing loss and tinnitus had their onset years after active service. Additionally, service treatment records do not show that the Veteran sustained substantial acoustic trauma during service. The DD Form 214 reflects that the Veteran's military occupational specialty was as a patient administration specialist, which has a low probability of exposure to acoustic trauma. On the question of direct service connection, the April 2022 VA examination report contains the VA examiner's opinion that it is less likely than not that the current right and left ear hearing loss and tinnitus are the result of military noise exposure during service. The VA examiner explained that the Veteran's military occupational specialty indicates a low probability of hazardous noise exposure during service. Since the DD Form 214 shows sharpshooter marksmanship badge and grenade marksmanship badge, some noise exposure during service is recognized; however, because hearing acuity was measured within normal limits at service separation, the VA examiner concluded that the current right and left ear hearing loss is less likely than not etiologically related to service. Specifically with respect to tinnitus, the VA examiner opined that it is less likely than not that the current tinnitus is etiologically related to service. The VA examiner explained that nature of the transient ear noise reported by the Veteran occurs in the general population without auditory damage or pathology, and the described transient ear noise is not consistent with noise-induced tinnitus. Based on the foregoing evidence, the Board finds that the persuasive weight of the evidence is against the appeal for service connection for right and left ear hearing loss and tinnitus; therefore, the appeal must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.