Citation Nr: 18146041 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 18-36 087 DATE: October 30, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT The competent evidence does not demonstrate that the Veteran has right ear hearing loss as defined by VA regulations. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1973 to July 1975. Service Connection 1. Entitlement to service connection for right ear hearing loss To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). An alternative method of establishing service incurrence and relationship to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303 (b) (2018); Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488 (1997); Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); Hickson v. West, 12 Vet. App. 247 (1999). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic, such as sensorineural hearing loss. 38 C.F.R. § 3.309 (a) (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). That presumption is rebuttable by probative evidence to the contrary. Impaired hearing constitutes a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; 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 (2017). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered a disability eligible for service connection. 38 C.F.R. § 3.385 (2017). The Veteran reported being exposed to loud noises during service. VA has conceded that the Veteran suffered from acoustic trauma due to exposure to loud noises during his period of service. Unfortunately, the Board notes that the competent medical evidence of record does not demonstrate that he has current right ear hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. The report of an August 2017 VA audiology examination shows that pure tone thresholds at 500, 1000, 2000, 3000, 4000 Hertz in decibels were as follows in the right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 20 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The examiner noted that the Veteran’s right ear hearing loss is not disabling under 38 C.F.R. § 3.385. There is no valid audiometric test result associated with the claims folder that shows the Veteran has right ear hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. The Board has considered the findings contained in the June 12, 2017 VA audiology note which show that the initial audiometric results for the right ear indicated mild to moderate-severe hearing loss, but several frequencies shifted during re-test, and the Veteran’s speech recognition in the right ear was considered poor at 56 percent. However, these test results were not considered reliable due to inconsistencies between speech recognition and pure tone averages and inconsistent pure tone threshold re-test results. The Veteran was advised he would need to undergo re-test prior to determination on issuance of hearing aids. The June 17, 2017 VA audiology note shows that upon audiometric re-test, the Veteran’s right ear hearing was essentially within normal limits, and his word recognition score was excellent in the right ear. So, although the initial June 2017 VA audiology evaluation may have indicated some right ear hearing loss, those test results were not considered valid and cannot be used to support a diagnosis of right ear hearing loss as defined by VA regulations. Moreover, the follow-up June 2017 audiology evaluation, performed less than a week later, shows the Veteran did not have right ear hearing loss as defined by VA regulations. 38 C.F.R. § 3.385 The threshold requirement for service connection to be granted is competent evidence of the current existence of the claimed disability. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The evidence of record shows that he does not have a right ear hearing loss disability for VA purposes and without this, the Veteran’s claim cannot be granted. The Veteran’s claim for service connection for right ear hearing loss is denied. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The report of an August 2017 VA audiology examination shows that the VA examiner noted that the Veteran’s service treatment records were unavailable for review, and the examiner noted that without the Veteran’s enlistment and separation examination reports, the presence of hearing loss or significant shift in service cannot be determined. The record shows that the Veteran’s service treatment records were associated with the claims folder in September 2017. The Board notes that the VA examiner used other evidence in support of the medical conclusion that the Veteran’s hearing loss was not result of his period of service. However, since the Veteran’s service treatment records have been associated with the claims folder, an addendum medical opinion is required to ensure the medical opinion is adequate. Further, the Board notes that the Veteran’s July 1973 enlistment examination report reflects that the Veteran had left ear hearing loss disability as defined by VA regulations, with 45 decibels at 4000 Hertz. See 38 C.F.R. § 3.385 (2018). The presumption of soundness does not apply to the Veteran’s left ear hearing loss. 38 U.S.C. § 1111 (2012). The issue then becomes a question of aggravation of pre-existing condition beyond the natural progression of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2018). On remand, a VA medical opinion is needed to determine whether the Veteran’s pre-existing left ear hearing loss was aggravated beyond its natural progression. The matters are REMANDED for the following action: (Continued on the next page)   1. Obtain an addendum opinion from an appropriate clinician on whether the Veteran’s claimed tinnitus is etiologically related to his period of service based on a review of the claims folder, including the service treatment records and July 2017 private medical statement. 2. Obtain an addendum opinion from an appropriate clinician on whether the Veteran’s left ear hearing loss was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel