Citation Nr: 18152799 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-18 208 DATE: November 27, 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 does not have bilateral hearing loss to an extent recognized for VA disability purposes. 2. The Veteran’s tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1976 to November 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his VA Form 9, the Veteran requested a Board hearing, but in August 2017 correspondence withdrew his hearing request. 38 C.F.R. § 20.704(d). Additionally, in March 2016, the Veteran revoked his prior representative, and has not since appointed a new one. 38 C.F.R. § 14.631(f). Service Connection Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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 order to be considered for service connection, a claimant must first have a current disability. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (Fed. Cir. 1992). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran asserts that his bilateral hearing loss is due his military occupational specialty (MOS) as an engineering equipment repairman. Specifically, he maintains that duties of his MOS exposed him to constant hazardous noise, including being near daily heavy artillery explosions and grenade training fields where concussion grenades were used in daily training exercises. See May 2014 VA Form 21-4138, April 2016 VA Form 9, and DD Form 214. In regard to the first element, the Veteran does not have a current hearing loss disability for VA purposes in either ear. Specifically, the March 2016 VA examiner noted the Veteran’s hearing acuity as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 35 30 LEFT 25 25 30 25 25 Speech recognition was 98 percent in the right ear and 100 percent in the left ear. These findings do not reflect the presence of a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. As there is no other audiometric testing during the appeal period that reveals otherwise (the August 2014 VA examination report revealed no audiometric data or speech recognition scores), there is no competent evidence that demonstrates bilateral hearing loss for VA purposes, and the claim for bilateral hearing loss is denied on this basis alone. Id; see also Brammer at 225. To the extent the Veteran asserts that he has a bilateral hearing loss disability, his opinion is not competent, as the VA has specifically determined audiometric findings that represent hearing loss for VA purposes. In reaching its 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, that doctrine is not applicable in the instant appeal and service connection for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his tinnitus is due to duties of his MOS that exposed him to daily hazardous noise, including heavy artillery explosions and concussion grenade training, as noted above. He maintains that as a result during service he started having headaches, ringing in his ears, and pain in his ears, specifically a sharp pain that felt like a needle in his ear that would occur all the time. See May 2014 VA Form 21-4138. The Veteran has a current diagnosis of tinnitus. He reports tinnitus in his lay statements and to the August 2014 and March 2016 VA examiners. Most importantly, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Regarding elements two and three, in-service incurrence of an injury and nexus, the Veteran’s service treatment records (STRs) are silent for complaints, diagnosis, or treatment of tinnitus. However, the Board finds that the Veteran’s statements regarding his exposure to acoustic trauma as a result of his in-service duties are credible, competent, and consistent with the circumstances of his military service; thus, his in-service exposure to acoustic trauma is conceded. 38 U.S.C. § 1154(a). Moreover, he has competently and credibly reported that he first experienced headaches, ringing in his ears, and pain in his ears during service as a result of duties associated with his MOS. See May 2014 VA Form 21-4138 and August 2014 and March 2016 VA examination reports. Thus, elements two and three of service connection are met. The Board recognizes that a VA audiologist, who examined the Veteran in March 2016, ultimately rendered a nexus opinion unfavorable to the Veteran’s tinnitus claim. However, the VA examiner relied on the absence of tinnitus complaints, diagnosis, or treatment in the Veteran’s STRs, did not consider the Veteran’s lay statements as to an onset of tinnitus in service, and intertwined the Veteran’s bilateral hearing loss claim with his tinnitus claim. Accordingly, the Board assigns this negative opinion no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the Veteran is competent to report that his tinnitus had its onset in service, and the Board finds him credible in this regard. Thus, all three elements are met, and service connection is warranted. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel