Citation Nr: 18144946 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-54 905 DATE: October 25, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss was not caused by active service and did not manifest to a compensable degree within one year of service separation. 2. Resolving all doubt in the Veteran’s favor, tinnitus is etiologically related to his period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1952 to February 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In June 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board notes that the Veteran was notified in April 2016 that his service treatment records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC), and that he may submit any service records in his possession. In May 2016, the Veteran submitted a letter stating he does not have any of his service records. Service Connection Service connection may be granted for a current disability resulting from a disease or injury incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). Generally, establishing service connection requires (1) evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Hearing loss and tinnitus, organic diseases of the nervous system, are chronic conditions listed under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may also be established for hearing loss or tinnitus based upon a legal presumption by showing that a disorder manifested itself to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). Service connection for impaired hearing shall be established when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; or when the auditory threshold 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. In evaluating service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for bilateral hearing loss At the June 2018 hearing, the Veteran testified that he did not have hearing loss before service. He stated that during service, he was a heavy truck driver, and he was not offered any type of hearing protection. The Veteran testified that he first noticed his hearing loss immediately after service discharge, and he eventually required hearing aids. The Veteran’s military specialty was a heavy vehicle driver. VA medical records show the Veteran complained of hearing loss in July 2013. Private medical records from May 2014 indicate the Veteran had decreased hearing bilaterally. In May 2015, the Veteran underwent an audiology examination. He was noted to have a longstanding history of asymmetrical hearing loss, and he was issued hearing aids. An otoscopic examination also revealed both ears were completely occluded with cerumen. At a VA audiology examination in March 2016, the veteran reported his hearing loss was worse in the left ear. He stated he drove a truck during service, and worked in a factory after service. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 40 45 55 LEFT 50 50 65 70 75 Using the Maryland CNC speech discrimination test, speech audiometry revealed speech recognition ability of 90 percent in the right ear, and 46 percent in the left ear. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. However, the examiner stated she could not provide a medical opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation. The examiner noted that the Veteran’s military occupational specialty was highly probable for noise exposure, and the Veteran reported having hearing difficulties since service. She explained that without audiometric records, she is unsure if hearing loss existed before service, and she could only speculate whether military noise exposure and/or post-service factory work may have contributed to hearing loss. The Veteran meets the first required element of service connection, as he has a current diagnosis of bilateral hearing loss. Because the Veteran’s service treatment records are unavailable at no fault of the Veteran, the Board gives the Veteran the benefit of the doubt that he was exposed to acoustic trauma during service, thus meeting the second required element. The third required element, however, is not met. The Board finds the preponderance of the evidence weighs against finding a nexus between the Veteran’s present hearing loss and his military service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). While the Veteran is competent to report having experienced symptoms of hearing loss during service, he is not competent to provide a diagnosis of hearing loss during or immediately after service, which would have required audiologic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n. 4 (Fed. Cir. 2007). The March 2016 VA examiner’s determination that a medical opinion could not be provided without resort to speculation is indeed a medical conclusion “just as much as a firm diagnosis or a conclusive opinion” because her findings are based on all available evidence of record and an examination of the Veteran. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Veteran has not submitted an opinion or any other medical evidence that would establish a nexus between his hearing loss and military service. Therefore, the claim of entitlement to service connection for bilateral hearing loss is denied. 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus At the March 2016 VA examination, the examiner stated that the Veteran’s tinnitus is at least as likely as not a symptom associated with hearing loss. She stated that she could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation due to the lack of service treatment records. The examiner explained that though the Veteran’s military occupational specialty was highly probable for noise exposure and the Veteran remembers having tinnitus during service, she could only speculate if this was caused by service or post-service work in a factory. While the VA examiner did not opine that the Veteran’s tinnitus was caused by service, the Board finds that, after resolving doubt in the Veteran’s favor, the Veteran is entitled to service connection for tinnitus. The Veteran stated he has experienced a ringing in his ears since service. He is competent to report that tinnitus was incurred in service and that it has existed from service to the present. See 38 C.F.R. § 3.159 (a)(2); Jandreau, 492 F.3d at 1377, Charles v. Principi, 16 Vet. App. 370, 374 (2002). Upon resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for tinnitus and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel