Citation Nr: 18150246 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-41 487 DATE: November 14, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran does not have current hearing loss in his right ear, according to VA regulations. 2. The Veteran’s left ear hearing loss is etiologically related to service. 3. The Veteran’s tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to August 1978. The Veteran claims entitlement to service connection for bilateral hearing loss. However, as service connection for the Veteran’s right ear hearing loss is not warranted, the claims have been adjudicated separately. Service Connection 1. Entitlement to service connection for right ear hearing loss The Veteran claims entitlement to service connection for bilateral hearing loss. Specifically, he asserts that during active duty, he was exposed to noise in his occupation working on flight lines as an environmental systems mechanic in the US Air Force. For reasons discussed below, service connection is warranted for the Veteran’s left ear hearing loss, but not his right ear hearing loss. Here, as an initial matter, the Board finds the Veteran’s statements regarding his in-service acoustic trauma credible; according to his DD-214, the Veteran was an aircraft environmental systems mechanic. In-service health records, including one dated September 1975 and January 1978, corroborate that the Veteran worked in flight line operations. The nature of his service is consistent with a military occupation where significant noise exposure over a prolonged period is likely. Thus, the Board concedes exposure to hazardous noise for purposes of establishing an in-service event. However, based on the evidence of record, the Board determines that service connection is not warranted for the Veteran’s right ear hearing loss because he does not currently have hearing loss in his right ear, as it is defined in VA regulations. Service connection may only be granted for what the law considers a “current disability.” When a claimed condition is not shown by medical evidence, there may be no grant of service connection. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, while the Board concedes in-service acoustic trauma, and finds the Veteran’s statements regarding his hearing loss since service credible, service connection for right ear hearing loss is not warranted because the Veteran does not have “current” right ear hearing loss as defined by VA. 38 C.F.R. § 3.385. Specifically, medical evidence, including the most recent VA examination dated December 2012, demonstrates that the Veteran does not have right ear hearing loss for VA purposes under 38 C.F.R. § 3.385, as he did not have auditory thresholds in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz of 40 dB or greater; or auditory thresholds for at least three of the above frequencies of 26 dB or greater; or speech recognition scores less than 94 percent. Notably, the Veteran did not have any auditory thresholds above 25 dB at any frequency in his right ear, and his speech recognition score was 96 percent. In other words, the Veteran’s right ear hearing loss is not at a level that is considered a disability for VA purposes. Accordingly, he does not have a current right ear hearing loss disability, and service connection is not warranted. 2. Entitlement to service connection for left ear hearing loss However, the medical evidence indicates that the Veteran does have a current disability of left ear hearing loss, and that it is etiologically related to service. In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above 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 (2016). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385 ; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. As mentioned above, in-service exposure to noise is conceded, for purposes of establishing an in-service event. Moreover, there appears to be a perceptible tonal threshold shift during the Veteran’s active service. His audiometric readings at the time of his enlistment show normal hearing. A comparison of his December 1973 report and an August 1976 periodic examination report shows perceptible shifts in the left ear from 0 to 15 dB at the 1,000 Hz level, 0 to 10 dB at the 2,000 Hz level, and 0 to 5 dB at the 3,000 Hz level. In fact, the Veteran’s audiogram report dated August 1976 specifically notes a threshold shift in service. Accordingly, the required showing of an in-service incurrence has been met. Next, the Veteran stated to his July 2011 audiologist that despite no significant noise exposure post-military, his hearing loss gradually worsened, to the point where his left ear hearing loss is now at levels severe enough to be considered a disability under 38 C.F.R. §3.385. Audiological evaluations performed since active duty reflect findings which meet the requirements of 38 C.F.R. § 3.385. Specifically, the Veteran’s December 2012 VA examination documents left ear hearing loss of 40 dB at 4,000 Hz. Given the presence of a threshold shift in service, the nature of the Veteran’s acoustic trauma while in service, and the presence of current left hearing loss for VA purposes, it is at least as likely as not that the Veteran’s left ear hearing loss is etiologically related to service. Therefore, service connection is warranted on this basis for left ear hearing loss. 3. Entitlement to service connection for tinnitus The Veteran also claims entitlement to tinnitus, which, as with his hearing loss claim, he attributes to noise on the aircraft flight line. Moreover, the Board takes notice of the fact that tinnitus may occur as a symptom of nearly all disorders, including sensorineural or noise-induced hearing loss. See The MERCK Manual, Sec. 5, Ch. 46, Approach to the Patient with Ear Problems (19th ed. 2011). Given the fact that the Veteran is service-connected for left ear hearing loss, in conjunction with the provisions from The MERCK Manual and the Veteran’s statements, the Board concludes that there is support for the conclusion that his tinnitus is attributable to his period of active service. Therefore, despite a somewhat conflicting report in a July 2011 record that the tinnitus began “last year,” the Board finds the Veteran’s claim competent and credible. Indeed, the Veteran clarifies in his November 2014 VA Form 9 that he did not think to complain about the ringing because it seemed inappropriate in light of what other service members went through overseas. For the above reasons, service connection is therefore warranted for tinnitus. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel