Citation Nr: 18154602 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-49 969 DATE: November 30, 2018 ORDER Entitlement to service connection for hearing loss of the left ear is denied. Entitlement to service connection for hearing loss of the right ear is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. There is no evidence of record which establishes that the Veteran has a current diagnosis of hearing loss of the left ear in accordance to VA standards. 2. The Veteran’s hearing loss of the right ear did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 3. After affording the Veteran the benefit of reasonable doubt, there is persuasive evidence that he had tinnitus during service that has been present since service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1974 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran withdrew his request for a hearing before the Board. Service Connection Generally, to establish service connection a veteran 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 or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral hearing loss and tinnitus, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). In this case, the Veteran has been diagnosed with bilateral sensorineural hearing loss and tinnitus. Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015) (tinnitus is an "organic disease of the nervous system" subject to presumptive service connection under 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 where there is evidence of acoustic trauma and nerve damage). As such, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply to the claims for both hearing loss and tinnitus. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his bilateral hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Veteran contends that he has bilateral hearing loss and tinnitus as he had to wear a headset and listen to Morse Code for eight hours a day from 1974 to 1988 as an O5H Electronic Warfare Signals Intelligence Morse Interceptor. See August 2015 Correspondence and January 2016 NOD. The Veteran stated that he has not been in contact with any loud noise since his retirement from the military service in 1994. See January 2016 NOD. 1. Entitlement to service connection for hearing loss of the left ear is denied. Despite the Veteran’s contentions, based on a review of the record, the Board finds that the Veteran does not meet the standards for service connection for hearing loss of the left ear as the preponderance of the evidence supports a finding that there is no current disability that meets the criteria of 38 C.F.R. § 3.385. In regards to the first element of direct service connection (a current disability) for hearing loss, the medical evidence does not reflect a diagnosis of hearing loss of the left ear in accordance to VA standard. A review of the service treatment records shows the Veteran had normal drums and ears with no complaints, treatment, or diagnosis of hearing loss in the May 1974 enlistment examination, January 1983 periodic examination, July 1988 periodic examination, June 1993 fitness examination, and February 1994 retirement examination. See August 1994 STR – Medical records and January 2015 Military Personnel Record. Further, a review of post service treatment records shows no further subsequent complaints, symptoms or diagnosis of hearing loss of the left ear. Even the Veteran conceded that he has no documentation of a hearing loss. See August 2015 Correspondence. In the November 2015 VA examination, the Veteran essentially had unremarkable findings of the left ear. Specifically, the Veteran only exhibited above 26 decibel (35) at 4000 Hz. The Veteran also exhibited 100 percent speech discrimination in his left ear. As such, the Board finds that the Veteran does not have hearing loss of the left ear in accordance to VA standards. Accordingly, the Board finds that the first element has not been met. In so finding, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, however, as noted above, the evidence does not establish that the Veteran currently experiences a diagnosable hearing loss of the left ear in accordance to VA standard. The Board notes that Congress has specifically limited service connection to instances where there is current disability that has resulted from disease or injury. See 38 U.S.C. § 1110. In the absence of a current disability, the analysis ends, and the claim for service connection for hearing loss of the left ear cannot be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Entitlement to service connection for hearing loss of the right ear is denied. At the outset, the Board notes that the Veteran has a current diagnosis of hearing loss of the right ear that meets the criteria of 38 C.F.R. § 3.385. See November 2015 C&P Exam. As such, the first element of service connection is met. The Board also concedes that the Veteran was exposed to some degree of noise during active service. What remains for consideration is whether the Veteran’s current hearing loss in the right ear is related to his in-service noise exposure. A review of service treatment records notes normal ears and drums with no complaints, symptoms, signs, or diagnoses of hearing loss. The service records show the Veteran affirmatively denied any ear or drum related trouble while in service in the May 1974 enlistment examination, January 1983 periodic examination, July 1988 periodic examination, June 1993 fitness examination, and February 1994 retirement examination. See August 1994 STR – Medical records and January 2015 Military Personnel Record. Post-service outpatient treatment records show that the Veteran does not have any past medical history of hearing loss. Further, the Veteran was not diagnosed with hearing loss of the right ear until the November 2015 VA examination, 20 years after service. See November 2015 C&P Exam. In the November 2015 VA examination, the Veteran argued that he was exposed to noise in the military as he was required to wear headsets. On examination, the Veteran exhibited hearing loss of the right ear but scored 100 percent in speech discrimination. The examiner opined that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for the right ear. Further, the examiner opined that the Veteran’s hearing loss of the right ear is less likely as not caused by or a result of an event in military service. In support of the examiner’s opinion, the examiner explained that the Veteran had normal hearing at retirement and presented no significant threshold shift. Further, the examiner stated that in the report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), the Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. Moreover, there is no sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. As such, the examiner determined that it is unlikely that such delayed effects occurred. The Board acknowledges the Veteran’s lay statement that military noise exposure caused his hearing loss. However, such an opinion of nexus requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As stated above, the Veteran’s service treatment records show normal ears and drums in service, and his post-service records show no hearing deficits until 2015, 20 years after service. Further, the Board finds the November 2015 VA examiner’s conclusion persuasive and probative that the Veteran’s hearing loss is less likely than not caused by or a result of his military noise exposure. Thus, the Board finds there is no competent evidence of record to provide a nexus between the Veteran’s hearing loss of the right ear and service. 3. Entitlement to service connection for bilateral tinnitus is granted. After affording the Veteran the benefit of reasonable doubt, the Board concludes that there is persuasive evidence that his tinnitus began during service and has been present since that time. A review of the service treatment records shows the Veteran had normal drums and ears with no complaints, treatment, or diagnosis of tinnitus in the May 1974 enlistment examination, January 1983 periodic examination, July 1988 periodic examination, June 1993 fitness examination, and February 1994 retirement examination. See August 1994 STR – Medical records and January 2015 Military Personnel Record. Further, a review of post service treatment records shows no further subsequent complaints, symptoms or diagnosis of bilateral tinnitus. Even the Veteran affirmed that he has no documentation of bilateral tinnitus. See August 2015 Correspondence. The Board notes that the Veteran was afforded a VA examination in November 2015. In the examination, the Veteran alleged that he hears a constant moderate high-pitched sound. He reported that tinnitus began during the military. The examiner opined that it is less likely than not the Veteran’s bilateral tinnitus is caused by or a result of military noise exposure. In his January 2016 notice of disagreement and October 2016 Form 9, the Veteran reported that he would have been on constant sick call for tinnitus during the military if he did not think at the time that it was a normal part of working as a Morse interceptor. He continued that the ringing in both his ears continued through his retirement and was still present. The Board concludes that despite the VA examiner’s conclusion that tinnitus was not related to in-service noise exposure, the Veteran has credibility reported that he began to experience ringing in his ears during service that has continued to the present time. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Accordingly, the Board finds that service connection for tinnitus is warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel