Citation Nr: 18155882 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-00 301 DATE: December 6, 2018 ORDER Entitlement to service connection for right ear hearing loss disability is denied. Entitlement to service connection for left ear hearing loss disability is granted. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss for VA purposes. 2. The Veteran’s left ear hearing loss is etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from February 1960 to August 1972. Regrettably, the Veteran died in July 2016. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In connection with this appeal, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2017 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. This matter was previously before the Board in January 2018, at which time the Board remanded the issues currently on appeal for additional development. The case has now been returned to the Board for further appellate action. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As this appeal contains at least one issue that may be affected by the resolution of Procopio, the Board will “stay” or postpone action on the claims of entitlement to service connection for a heart disability, diabetes mellitus type II, erectile dysfunction, bilateral upper extremity peripheral neuropathy, and bilateral lower extremity peripheral neuropathy. Service Connection Claims – Hearing Loss Disability The Veteran asserted that he had bilateral hearing loss disability as a result of acoustic trauma sustained in active service. Specifically, the Veteran had claimed hazardous noise exposure in the form of firing weapons without proper ear protection during active service. A review of the Veteran’s service records shows that his military occupational specialty (MOS) during active duty was as a boiler tender and instructor. The Board finds that the Veteran’s reported noise exposure is consistent with the facts and circumstances of his service. Therefore, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of bilateral hearing loss disability for VA purposes while the Veteran was in active service. However, the Veteran reported that he first experienced decreased hearing acuity while in active service and that his symptoms continued since that time. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. In December 2012, the Veteran was afforded a VA audiology evaluation. At that time, the Veteran reported the in-service noise exposure described above. Audiogram results at that time showed the Veteran to have left ear hearing loss for VA purposes. See 38 C.F.R. § 3.385 (2018). Audiogram results at that time showed that the Veteran did not have right ear hearing loss for VA purposes. Id. The VA examiner diagnosed left ear hearing loss disability for VA purposes. The examiner opined that the Veteran’s left ear hearing loss disability was not caused by or the result of active service. In this regard, the examiner noted that Veteran had normal hearing at his entrance and separation examinations, with no significant permanent shift in hearing during active service. Moreover, the examiner noted that the Veteran passed the whispered voice test conducted at his separation examination in August 1972. In April 2018, an addendum VA medical opinion was obtained. After review of the Veteran’s file, the examiner opined that the Veteran’s left ear hearing loss disability was not caused by or the result of active service. In this regard, the examiner stated there was no evidence in the record that the Veteran sustained noise injuries based on the audiograms of record. The examiner opined that if there was hearing loss, there was no basis to conclude that the hearing loss was causally related to military service. In this regard, the examiner stated that hearing loss from noise injuries occurred immediately following exposure, and that there was no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. The Board finds the December 2012 and April 2018 VA medical opinions to be inadequate for adjudication purposes. In this regard, the examiners did not give appropriate consideration to the Veteran’s lay statements regarding the onset and continuity of his symptoms. As the opinions are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. A review of the post-service evidence of record does not show that the Veteran has been diagnosed with right ear hearing loss disability for VA purposes. 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify decreased hearing acuity, and his statements have been found credible. For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, there is no evidence of record showing that the Veteran has right ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2018). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In sum, the Board concedes that the Veteran sustained acoustic trauma in active service. The Veteran competently and credibly reported decreased hearing acuity in service and since. The Veteran had left ear hearing loss for VA purposes. The Veteran did not have right ear hearing loss for VA purposes. There is no competent VA medical opinion of record against the claim of entitlement to service connection for left ear hearing loss disability. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for left ear hearing loss disability is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for left ear hearing loss disability is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) However, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for right ear hearing loss disability and entitlement to service connection for such is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel