Citation Nr: 18158417 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-04 381 DATE: December 14, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to an initial rating higher than 10 percent for tinnitus is denied. FINDINGS OF FACT 1. The Veteran has not had right ear hearing loss for VA purposes at any time during the current appeal or approximate thereto. 2. The evidence is at least evenly balanced as to whether the Veteran’s left ear hearing loss is related to in-service noise exposure. 3. The Veteran’s tinnitus has been assigned a 10 percent disability rating, which is the maximum schedular rating under the applicable schedular criteria. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. There is no basis for the assignment of a rating higher than 10 percent for tinnitus. 38 U.S.C. §1155; 38 C.F.R. §§3.321, 4.87, Diagnostic Code (DC) 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from October 1987 to July 1990. These matters come before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran’s claims for service connection for bilateral hearing loss. In that decision, the RO also granted service connection for tinnitus and assigned a 10 percent disability rating, effective March 16, 2015, the date of the Veteran’s claim. The Veteran timely appealed the initial rating assigned. Bifurcation of a claim generally is within VA’s discretion. Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). In this case, the Board has bifurcated the issue of entitlement to service connection for bilateral hearing loss for the reasons below. General Legal Principles Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Regarding hearing loss specifically, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 are 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. Hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 177 (2007). Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a current disability. See 38 U.S.C. § 1110. 38 C.F.R. § 3.385 prohibits the award of service connection for hearing loss where audiometric test scores do not represent “impaired hearing” as defined by regulation. Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (citing Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992)). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). 1. Entitlement to service connection for right ear hearing loss is denied. The Veteran filed his claim for service connection for bilateral hearing loss in March 2015. His claim, however, for hearing loss in the right ear must be denied because, as shown below, he has not had a right ear hearing loss disability at any time since or near the filing of his claim. In connection with this claim, the Veteran underwent a VA audio examination in November 2015. On examination, pure tone thresholds, in decibels (dB), were as follows for the Veteran’s right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 15 20 35 The Maryland CNC speech recognition score for the right ear was 98 percent. Hearing loss was not diagnosed. In addition, the Veteran’s service treatment records, specifically audiograms (to include from his July 1990 service separation examination), indicated normal hearing. Moreover, post-service medical records show no audiometric findings or speech recognition scores and no diagnosis of right ear hearing loss. The evidence of record, therefore, reflected that the Veteran has not met VA’s requirements for hearing loss disability based on either auditory thresholds or speech recognition scores during the pendency of the claim. In this regard, the November 2015 VA audio examination report failed to show hearing thresholds of 40 decibels or greater, or hearing thresholds of 26 decibels or higher at three frequencies, or speech recognition scores less than 94 percent as required by 38 C.F.R. § 3.385. While veterans are competent to testify as to some medical matters, see Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007), VA has determined that hearing loss can only be considered a disability if it meets the audiometric or speech recognition scores required by 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007) (hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385). Therefore, the Veteran’s statements do not warrant a finding that he has met the current disability requirement. The weight of the competent evidence, thus, reflected that the Veteran does not have a current hearing loss disability in the right ear. As indicated above, Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. In the absence of evidence that the Veteran currently has right ear hearing loss, to an extent recognized as a disability under the governing regulation, there can be no award of service connection for right ear hearing loss. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 2. Entitlement to service connection for left ear hearing loss is granted. A November 2015 VA audiological examination report showed that the Veteran has a current diagnosis of left ear hearing loss. See 38 C.F.R. § 3.385. On examination, pure tone thresholds, in decibels (dB), were as follows for the Veteran’s left ear: HERTZ 500 1000 2000 3000 4000 LEFT 35 30 25 25 35 The Maryland CNC speech recognition score for the left ear was 98 percent. Thus, the Veteran has left ear hearing loss as he had hearing thresholds of 26 decibels or higher at three frequencies. The Veteran indicated that he suffered in-service noise exposure. His DD Form 214 shows that his military occupational specialty (MOS) was boatswain. In a March 2016 statement in support of the claim, the Veteran described how he worked in a noise-filled environment and used hammer grinders, hammer guns, and chipping hammers to paint and repair the ship. The Veteran is competent to report in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, the Board finds that the Veteran’ statements in this regard are competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. §3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran has met the in-service injury or event requirement. Thus, the dispositive issue in this case is whether there is a nexus between the current left ear hearing loss and the in-service noise exposure. The November 2015 VA examiner attempted to address this issue. He opined that the Veteran’s hearing loss was not likely caused by noise exposure in service. The only rationale provided was that “a noise induced hearing loss will not progress once it is stopped.” However, the left ear hearing loss numbers worsened since the Veteran’s entrance into service, and at no point do medical reports suggest that the progress of the Veteran’s left ear hearing loss has stopped. Moreover, the Board finds credible the Veteran’s statements and testimony indicating that he experienced right ear hearing loss in service after his noise exposure, the fact that the examiner did not consider such lay statements reduces the probative value of this opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In addition, the absence of a left ear hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The VA examiner’s opinions were also based on the incorrect assumption that working on a ship has no noise exposure. The Veteran explained he worked in close contact with loud machinery and engines. Furthermore, in his January 2017 Form 9, the Veteran explained that he noticed his hearing loss, but did not seek treatment while in service because he was focused on completing his duties. As the probative value of the VA examiner’s opinion has been reduced and the Veteran’s statements and testimony as to his left ear hearing loss are competent and credible, the evidence is thus at least evenly balanced as to whether the Veteran’s right ear hearing loss is related to his in-service noise exposure. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left ear hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §3.102; See Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 3. Entitlement for an initial rating higher than 10 percent for tinnitus is denied. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s tinnitus is assigned a 10 percent rating under 38 C.F.R. §4.87, DC 6260. Under DC 6260, recurrent tinnitus warrants a maximum 10 percent rating. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. §4.25 (b) and DC 6260 limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral). Although the Veteran contends that his service-connected tinnitus warranted a higher rating, this disability has been assigned the maximum schedular rating available. 38 C.F.R. §4.87, DC 6260. There is thus no legal basis upon which to award more than a single 10 percent schedular rating and the Veteran’s claim for a higher schedular rating for tinnitus must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is also no evidence of argument that tinnitus causes marked interference with employment of frequent hospitalization. Consideration of whether an extraschedular rating is warranted is therefore not required. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lopez, Law Clerk