Citation Nr: 18154407 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-58 676A DATE: November 29, 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 have bilateral hearing loss hearing loss for VA purposes, but the hearing loss was not incurred as due to service. 2. The Veteran’s tinnitus was caused by active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to September 1988, December 1990 to June 1991, and January 2004 to December 2004. The Board of Veterans’ Appeals (Board) notes complete service treatment records (STRs) have not been recovered by VA after several attempts to acquire such records. An August 2007 Request for Information response confirms the Veteran’s complete STRs were unable to be located. Given the missing STRs, VA has a heightened duty to assist the Veteran in developing his claim. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Certain chronic disabilities are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for hearing loss Under 38 C.F.R. § 3.385, disability due to impaired hearing, 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, 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 (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran’s available STRs are negative for complaints of hearing loss. September 2011 VA treatment notes show a hearing evaluation found the Veteran has bilateral hearing within normal limits. The Veteran was afforded a VA examination in July 2013. The Veteran’s auditory thresholds did not meet the 38 C.F.R. § 3.385 criteria, but the speech recognition score in the right ear was 84 percent, and the speech recognition score in the left ear was 92 percent. The VA examiner found the Veteran’s bilateral hearing normal for VA purposes. The VA examiner provided an addendum opinion in August 2013 opining the Veteran’s speech recognition scores obtained were influenced by possible central factors showing delayed responses and an unusual score shift to varying speech intensity signals and, accordingly, were not reflective of peripheral hearing loss that could result from loud noise exposure. Based on a review of the evidence, the Board concludes that service connection for bilateral hearing loss is denied. The Veteran’s left and right ear speech recognition scores show hearing loss for VA purposes per 38 C.F.R. § 3.385. In July 2013, the VA examiner incorrectly found the Veteran had normal hearing for VA purposes. The August 2013 VA addendum opinion rectified the inadequacies of the July 2013 examination by noting peripheral hearing loss and providing a negative nexus opinion based upon delayed responses and unusual score shift to varying speech intensity signals. The examiner provided the negative nexus opinion based upon an audiological examination and complete review of the Veteran’s claim file. The Veteran contends his hearing loss was caused by noise exposure in service, to include mortar attacks in Iraq. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435. The diagnosis of a bilateral hearing loss disability as defined by VA is medically complex, requiring specified audiological testing, and accordingly, the Board assigns greater weight to the testing performed by, and the opinion of, the VA examiner than to the Veteran’s own lay opinions. The Veteran has not been shown to possess the training, credentials, or other expertise to render a diagnosis that is of comparable probative value to that of the VA examiner’s. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The record is negative for findings indicative of hearing loss for VA purposes until July 2013, over 8 years after separation from active service. The September 2011 examiner found the Veteran’s hearing to be within normal limits. The record is also negative for a competent nexus opinion relating the Veteran’s hearing loss disability, shown in July 2013, to active service. Therefore, based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim for service connection for bilateral hearing loss is denied. See 38 U.S.C. § 5107. 2. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus related to active service, caused during his deployment in Iraq in 2004. The Veteran was afforded a VA examination in July 2013. The Veteran reported experiencing recurrent tinnitus since a 2004 motor attack. He did mention the tinnitus when away for a week or so, and the tinnitus had worsened recently. The examiner provided a negative nexus opinion because the Veteran’s STRs did not show evidence of tinnitus. The Board, however, acknowledges the Veteran’s complete STRs are not available and has considered the Veteran’s lay evidence that tinnitus had an onset in service. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland’s Illustrated Medical Dictionary 1930 (32st ed. 2012). Indeed, because of the inherently subjective nature of tinnitus, it is capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). As tinnitus is capable of lay diagnosis, and the Veteran’s service records support exposure to acoustic trauma during deployment in Iraq, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s tinnitus was caused by or incurred during active duty service. Accordingly, service connection for tinnitus is warranted, and the claim is granted. 38 C.F.R. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel