Citation Nr: 18150233 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-28 977 DATE: November 14, 2018 ORDER Entitlement to service connection for right-ear hearing loss is denied. REMAND Entitlement to service connection for left-ear hearing loss (claimed as bilateral hearing loss) is remanded. Entitlement to service connection for bilateral tinnitus is remanded. FINDING OF FACT The most probative evidence indicates that the Veteran does not have a current diagnosis of right ear hearing loss. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from November 1978 to May 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board video conference hearing in August 2018; however, he did not report for the hearing. Service Connection for Right Ear Hearing Loss Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, 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 is 40 decibels or greater; or 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. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran contends that he has hearing loss as a result of acoustic trauma during service. The Veteran indicated that, during service, he worked as a motor vehicle mechanic, was on the firing range, fired rifles, and was exposed to explosions during training. See January 2011 VA examination; May 2010 Statement of Support. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to service. The Board concludes that the Veteran has not had a current hearing loss disability in his right ear at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, a January 2011 audiogram showed pure tone thresholds in the right ear were 25, 15, 10, 15, and 30 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Speech recognition score was 100 percent in the right ear. Thus, the findings on the audiogram do not meet the criteria set forth in 38 C.F.R. § 3.385 for establishing a hearing loss disability for VA purposes. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). While the Veteran believes he has a current right ear hearing loss disability, as a lay person, he is not competent to determine the severity of hearing loss, as such matter requires medical testing and expertise to determine. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the findings on VA audiology examination. REASONS FOR REMAND 1. Service connection for left ear hearing loss is remanded. 2. Service connection for bilateral tinnitus. The Board finds that an additional opinion is needed on the claim for service connection for left ear hearing loss. In this regard, the VA examiner provided a conflicting opinion regarding the etiology of the left ear hearing loss. With respect to tinnitus, the VA audiology examiner linked the condition to hearing loss while the VA ear examiner linked the condition to the post-service head injury. Accordingly, an additional opinion is needed on that claim as well. The matters are REMANDED for the following action: 1. Send the claims file to an appropriate VA examiner to obtain an addendum opinion on the claims for service connection for hearing loss and tinnitus. If an examination is deemed necessary to respond to the question presented, one should be scheduled. Following review of the claims file, the examiner should respond to the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current hearing loss disability in the left ear is etiologically related to noise exposure during service? Please explain why or why not. b. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current tinnitus is etiologically related to noise exposure during service? If not, is it at least as likely as not that the tinnitus is related to hearing loss? Please explain why or why not. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. N. Wilson, Law Clerk