Citation Nr: 1800419 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-26 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's tinnitus is related to active service. 2. The Veteran does not have bilateral hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. § 1101, 1110, 1154, (West 2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. § 1101, 1110, 1131, 1154 (West 2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1965 until December 1967. These matters come before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veteran Affairs (VA), Regional Office (RO) in Philadelphia, Pennsylvania. In August 2017, the Veteran testified via video conference before the undersigned. A transcript of the hearing has been associated with the claims file With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has tinnitus that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran's tinnitus is etiologically related to the Veteran's active service. The Veteran avers that he suffers from tinnitus due to his exposure to acoustic trauma in service. The claims folder reflects that during active service the Veteran served as a field wireman. The claims folder also reflects the Veteran's service within the Republic of Vietnam. Additionally, the Veteran has consistently stated that he first experienced ringing in his ears during active service. Based on the Veteran's military occupational specialty (MOS), his Vietnam combat service, and his consistent statements of exposure to military weapons fire; the Board finds that the Veteran experienced acoustic trauma during his active military service. The Board notes that the Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). In the present case, a February 2014 private medical letter from the Veteran's physician reflects the Veteran with tinnitus. Private medical records links the Veteran's current tinnitus to his military noise exposure. Additionally, the Veteran has made consistent statements in regard to the onset of his tinnitus. In light of the Veteran's confirmed in-service incurrence, the objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for tinnitus and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for tinnitus is granted. 38 U.S.C. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has bilateral hearing loss that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran has bilateral hearing loss for VA purposes. An essential element of a claim for service connection is evidence of a current disability. 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 of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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 (2017). A July 2011 VA examination report revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 15 20 LEFT 20 30 20 20 30 The Veteran's speech recognition score was 98 percent for the right ear and 94 percent for the left ear. The claims folder also consist of private audiograms. A June 2012 private audiogram revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 X 10 LEFT 20 30 20 X 35 The Veteran's speech recognition score was 100 percent for the right ear and 100 percent for the left ear. A January 2009 private audiogram revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 20 X 10 LEFT 10 10 10 X 15 The Veteran's speech recognition score was 100 percent for the right ear and 100 percent for the left ear. Based on the foregoing, the Veteran does not have a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing difficulty hearing). To this extent, the Board finds that the Veteran is competent to report that he has current hearing difficulty; however, he has not been shown to be competent to provide a diagnosis of hearing loss disability for VA purposes, as that is based on specific audiometric findings. The Board finds that the clinical evidence of record is more probative than the lay statements. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexities of hearing loss, hearing acuity thresholds, and hearing loss disability for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges the Veteran's treatment records, which reflect high frequency hearing loss. (See February 2014 private medical letter). However, in order for the Veteran's hearing impairment to be considered a disability for VA purposes it must meet the criteria provided under current regulations. While the Board empathizes with the Veteran's current hearing impairment; it is unable to provide service connection as the Veteran's auditory threshold is not 40 decibels or greater in any of the listed frequencies, at least 26 decibels or greater in at least three of the listed frequencies, nor does he have speech recognition scores using the Maryland CNC Test that are less than 94 percent. 38 C.F.R. § 3.385 (2017). As explained above, the Veteran must have a disability at the time of the claim. Based on the given facts, the preponderance of the evidence is against a finding that the Veteran currently has bilateral hearing disability for VA purposes. Thus, service connection for such cannot be granted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107 (West 2014), and 38 C.F.R. § 3.102 (2017), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ____________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Brandon A. Williams, Associate Counsel Copy mailed to: [Pennsylvania Department of Military and Veterans Affairs] Department of Veterans Affairs