Citation Nr: 18159007 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-45 166 DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran does not currently have a bilateral hearing loss disability under VA standards. 2. Resolving reasonable doubt in in the Veteran’s favor, the Veteran’s tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1976 to November 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish a right to compensation for a present disability, 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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss disability is denied. The Veteran contends that he has a bilateral hearing loss disability since being exposed to excessive noise in service. Hearing loss will be considered to be a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). The United States Court of Appeals for Veterans Claims (Court) has held that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. In this case, the Board finds that the evidence does not establish the presence of a current bilateral hearing loss disability by VA standards at any time during the pendency of the appeal. Indeed, the VA examinations of record of December 2014 and October 2016 show speech discrimination of at least 94 percent in each ear. In December 2014 decibel (dB) loss at the puretone threshold of 500 Hertz (Hz), 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz were 0, 10, 15, 20, and 20 dB, respectively in the left ear; and, 5, 5, 10, 10, 15 in the right ear. Average puretone threshold in the left ear was 16 and 10 in the right. In October 2016 decibel (dB) loss at the puretone threshold of 500 Hertz (Hz), 1000 Hz, 2000 Hz, 3000 Hz and 4000 Hz were 5, 15, 15, 20, and 20 dB, respectively in the left ear; and, 10, 10, 15, 15, 15 in the right ear. Average puretone threshold in the left ear was 18 and 14 in the right. As there is no competent evidence showing a current hearing loss disability as defined by § 3.385, service connection for a bilateral hearing loss disability is denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992) (In the absence of proof of current disability, there can be no valid claim of service connection). 2. Entitlement to service connection for tinnitus is granted. The Veteran states that he was exposed to very loud noise during service. In this regard, the Board notes that a hearing examination completed while in service in August 1988 noted that the Veteran was “routinely exposed to hazardous noise” and that the Veteran was exposed to an armor unit. As such, noise exposure in service is conceded. Moreover, in a letter dated October 14, 2015 the Veteran stated that he experienced ringing in his ears while in service due to exposure to different weapons. The Veteran is competent to report that he has experienced tinnitus in and since service; a veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1995); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Here, the Board finds that the Veteran is competent to report noise exposure and ringing in the ears. Moreover, as noted above, the Board has conceded noise exposure in service. Accordingly, the Board finds the Veteran’s competent statements concerning his noise exposure and subsequent tinnitus to be credible and ultimately probative. The Board acknowledges the October 2016 VA examiner opinion that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure. In support of the opinion, the examiner stated that there is no documented evidence of tinnitus while in service. However, a lack of a diagnosis in service is not determinative of the issue of service connection. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Moreover, this does not consider the Veteran’s statements about noise exposure. Accordingly, the Board finds this opinion to be inadequate and accord it little probative weight. The Board finds the Veteran’s assertions to be credible. In the absence of an adequate medical opinion, the Board is left with a record that shows that the Veteran has tinnitus, that he was exposed to loud noises and began to experience symptoms in service, and that there was no other reported intervening acoustic trauma. Accordingly, the Board will give the benefit of the doubt to the Veteran, and resolve the matter in his favor. Therefore, service connection for tinnitus is granted. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Baronofsky Associate Counsel