Citation Nr: 18140556 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-27 289A DATE: October 4, 2018 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to an initial compensable rating for right ear hearing loss is remanded. FINDING OF FACT The Veteran does not have tinnitus. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 1. Entitlement to service connection for tinnitus Legal Principles Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 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) (2018). Because “Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” service connection cannot be granted “[i]n the absence of proof of a present disability.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a veteran “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability,” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). “In the absence of proof of a present disability there can be no valid claim.” Brammer, supra. Discussion Based upon a review of the record, the Board finds that service connection for tinnitus is not warranted in this case. The evidence simply does not show that such a condition is present. In making this finding, the Board observes that tinnitus is subjective and the type of condition to which lay testimony is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation). On one hand, the primary record in support of the presence of a ringing sensation in the Veteran’s bilateral ears is a statement in which the Veteran vaguely indicated he was “treated” for tinnitus at some point. On the other hand, medical treatment records on file overwhelmingly and persuasively reflect the Veteran has consistently denied experiencing tinnitus, i.e., ringing sensation. For instance, medical treatment records dated in May 2012 reflect the Veteran presented with complaints of worsening hearing. At that time, however, the Veteran expressly denied experiencing tinnitus. Similarly, medical treatment records dated in May 2013 reflect the Veteran denied experiencing tinnitus. This is consistent with the findings reported at the April 2014 VA examination, which reflects, in pertinent part, the Veteran denied recurrent tinnitus. The Board finds the examiner’s findings and the Veteran’s own statements to be the most probative evidence of record as to whether the Veteran presently has the claimed disability or has had it at any point during the pendency of the claim for such disability. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In the absence of a current disability, the analysis ends, and the claim for service connection for tinnitus cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for tinnitus. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. Regrettably, a review of the record reveals that the claim must be remanded for additional development prior to appellate consideration. The Veteran’s available military personnel records (MPRs) reflect the Veteran served on active duty from October 1977 to October 1981. Unfortunately, the record in this case appears to be incomplete. In particular, the Veteran has consistently indicated that he enlisted into military service in September 1974, wherein he was exposed to significant acoustic trauma as a result of his military occupational specialty (MOS) – reported as infantryman. The primary record in support of active service prior to October 1977 is a singular-page September 1974 report of medical examination. However, as indicated, the available MPRs reflect the Veteran served on active duty from October 1977 to October 1981. Coincidentally, the Veteran’s September 1977 report of medical examination is characterized as an “enlistment examination.” There is no other DD-214 of record reflecting service prior to October 1977. Of note, however, the DD-214 of record does reflect approximately two years of “total prior active service,” but there is no indication of the dates of such service. As such, it is unclear whether all the available records have been associated with the claims file. The apparent absence of such records having bearing on the Veteran’s pending appeal, if existent, frustrates appellate review. In light of the foregoing, the Board finds a remand to associate these records with the claims file is necessary. Additionally, the Board notes that the Veteran was provided with a VA audiological examination in April 2014. Report of the April 2014 VA audiological examination reflects, in pertinent part, a diagnosis of mixed hearing loss of the bilateral ears. With respect to the Veteran’s left ear hearing loss, the examiner noted that a medical opinion cannot be provided without resort to mere speculation. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). 2. Entitlement to an initial compensable rating for right ear hearing loss is remanded. Disability ratings for service-connected hearing impairments are determined through a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. See 38 C.F.R. § 4.85. The appropriate auditory level is identified as the point where the percentage of speech discrimination and puretone threshold average intersect. Id. The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels (dB) or more, the Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Likewise, a Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Where impaired hearing is service-connected in only one ear, the non-service connected ear will be assigned a Roman numeral designation of I, in order to determine the percentage evaluation from Table VII., subject to the provisions of § 3.383 providing special consideration for paired organs and extremities. 38 C.F.R. § 4.85(f). Consequently, the Board finds that it must remand the issue of entitlement to an initial compensable rating for right ear hearing loss as inextricably intertwined with the issue of service connection for left ear hearing loss, as the adjudication of the latter issue may impact the Veteran’s rating for right ear hearing loss. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (stating two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain all outstanding post-service medical treatment records from VA treatment facilities. 2. Take all necessary steps to verify all periods of active service for the Veteran between September 1974 and October 1977, to include obtaining military personnel records from the appropriate sources. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. 3. Upon verification, obtain outstanding service treatment records for the periods of service identified, if any. 4. Thereafter, send the Veteran’s claims file to an appropriate medical professional to determine the etiology of the Veteran’s left ear hearing loss. The electronic claims file must be made accessible to the examiner for review, and such review should be noted in the examination report. Following a review of the claims file and medical history, the VA examiner should offer an opinion as to the following: (a.) Whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s left ear hearing loss is etiologically related to active military service? The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, issue a SSOC and provide the Veteran with an opportunity to respond. Then return the case to the Board, if otherwise in order. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel