Citation Nr: 18156564 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-49 312 DATE: December 10, 2018 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for perforated eardrum is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, he has bilateral hearing loss disability that began during active service. 2. Resolving reasonable doubt in the Veteran’s favor, he has tinnitus that began during active service. 3. The Veteran does not have a current diagnosis of perforated eardrum. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for perforated eardrum have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1969, and is in receipt of a Purple Heart award and Bronze Star Medal for service in the Republic of Vietnam. Although the Veteran filed a notice of disagreement with the decisions regarding service connection for tiring easily and shortness of breath, anemia, solar keratosis (claimed as skin lesions), and short-term memory loss, he did not file a substantive appeal for those issues and they are not before the Board. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 1. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran contends that in-service, acoustic trauma (firing of rockets and firefights) caused his bilateral hearing loss and tinnitus. See April 2018 hearing transcript. Although July 2014 and February 2018 VA examiners opined to the contrary, the Board finds the October 2016 private opinion to hold greater probative value. Service treatment records (STRs) contain documentation of eardrum perforation in July 1969. The Veteran provided testimony at the April 2018 hearing that his tinnitus and bilateral hearing loss began in service after an explosion of rockets during a firefight, and continued after separation. Even though in this case there is evidence in the STRs of an in-service left eardrum perforation injury, because the Veteran engaged in combat with the enemy, such evidence is not required, either for the Board or for a VA examiner. The purpose of the combat presumption is to relieve veterans of the burden of assembling such records, given that they typically do not survive combat. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). The finding that the Veteran engaged in combat is significant because a combat veteran can use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). See also 38 C.F.R. § 3.304(d). Additionally, tinnitus is a subjective disability that cannot be identified through objective testing; as such, the Board defers to the Veteran’s testimony to find that his tinnitus began in service. Further in support of the Veteran’s claims, an October 2016 private examiner opined that both his bilateral hearing loss and tinnitus were more likely caused by the explosion and firing of military firearms than by genetic or aging factors. The examiner further noted that the Veteran’s asymmetry (left ear worse) is also further evidence that acoustic trauma caused his hearing loss and accompanying tinnitus, as he is a right-handed shooter and the explosion occurred on his left side. In this case, medical evidence shows tinnitus and a current bilateral hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. There is also evidence of an in-service injury, as VA has conceded to acoustic trauma. Moreover, the private opinion also suggests a link between hearing loss and tinnitus, and military service. While there is conflicting evidence regarding whether the Veteran’s bilateral hearing loss and tinnitus were incurred during his military service, the Board finds that the evidence is in equipoise and will resolve reasonable doubt in the Veteran’s favor to find that bilateral hearing loss and tinnitus began in, and was caused by acoustic trauma in service, and has continued to the present. Based on the Veteran’s competent and credible reports regarding his in-service noise exposure and current bilateral hearing loss and tinnitus, the Board resolves all doubt in his favor and finds that entitlement to service connection for bilateral hearing loss and tinnitus are warranted. 2. Entitlement to service connection for perforated eardrum The Veteran maintains that he has a perforated left eardrum as a result of service. STRs demonstrate that the Veteran did have perforation of the left drum in service, in July 1969. Although the Board in no way calls into question the Veteran’s assertions that he experienced perforated eardrums in service, by regulation, the Veteran does not meet the preliminary requirement for service connection, namely showing of a current disability. The Veteran has been afforded several VA examinations, and has submitted a report of an audiology examination conducted by a private audiologist. The Veteran’s CAPRI records throughout the entire appeal period demonstrate that his tympanic membrane is gray/translucent and normal. An October 2016 private examination indicated that otoscopic examination revealed clear ear canals and the appearance of intact tympanic membranes in both ears; tympanometry showed ear canal volumes, compliance and gradient to be within the normal limits, bilaterally. As such, the element suggesting that there is a current disability is not met here. The existence of a current disability is the basis of the first element of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. The Board must conclude that service connection for perforated eardrum is not warranted because the evidence does not establish the presence of a perforated eardrum disability for purposes of VA compensation at any time during the pendency of this claim. To the extent that the Veteran may believe that his hearing loss is due to this perforated ear drum in service, service connection for that disorder has not been granted service connection. The Board finds that the preponderance of the evidence is against the Veteran’s claim; therefore, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Warren, Associate Counsel