Citation Nr: 18159196 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-55 833 DATE: December 19, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The competent and credible evidence does not demonstrate that the Veteran has a current diagnosis for right ear hearing loss that comports with VA regulations. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that his tinnitus is etiologically related to his in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from January 1966 to December 1967 with additional periods of service in the U.S. Navy Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of the case is now before the RO in Los Angeles, California. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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 Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as other organic diseases of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss and tinnitus. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). With respect to hearing loss, impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Hensley at 159. The Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). 1. Entitlement to service connection for right ear hearing loss The Veteran contends that during service, his duties as an electrician’s mate, working to maintain the operations of the entre boat, especially the engine, exposed him to continuous loud noises. See September 2015 Notice of Disagreement (NOD) and November 2016 VA Form 9. The question before the Board is whether the Veteran has a current diagnosis for right ear hearing loss. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for right ear hearing loss is warranted. Preliminarily, the Board notes that the Veteran’s DD Form 214 reflects that his military occupation specialty (MOS) was Electrician’s Mate, which indicates that he had a moderate probability of noise exposure. See VA Fast Letter 10-35 (September 2, 2010) (discussing the Duty MOS Noise Exposure Listing). Notably, the Veteran has been service-connected for left ear hearing loss based on his in-service noise exposure. Accordingly, the Board finds that the Veteran experienced acoustic trauma during his active duty service. The Veteran’s service treatment records (STRs) do not document any findings related to any complaints, treatment, or diagnosis for any hearing problems. No audiometric testing was conducted during service. The Veteran’s hearing was tested using a “whisper test,” however such testing is not very reliable, and those results do not assist in determining the extent of change in the Veteran’s hearing loss levels during his service. In February 2015, the Veteran underwent a VA audiological examination. The results of puretone threshold testing were in the right ear at 500, 1000, 2000, 3000, and 4000 Hz of 20, 25, 25, 35, and 30 dB, respectively. Test results of puretone thresholds were in the left ear at 500, 1000, 2000, 3000, and 4000 Hz of 15, 15, 20, 30, and 40 dB. Speech audiometry testing revealed speech recognition scores of 96 percent in the right ear and 96 percent in the left ear. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Based on the findings that the Veteran had been exposed to noise during military service based on his duties as an electrician and engineer without using any hearing protection, the VA examiner opined that the Veteran’s bilateral hearing loss was at least as likely as not caused by his military service. The Veteran is certainly competent to report his hearing loss symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran has not presented any competent and credible evidence of a current diagnosis for right ear hearing loss that comports with VA regulations, and the available evidence does not support that the Veteran has any persistent right ear hearing loss symptomatology that would suggest that he has an underlying chronic disability. No underlying disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s service connection claim for right ear hearing loss. Therefore, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus The Veteran contends that due to his exposure to constant rifle fire and loud noises as an electrician’s mate, he experienced continuous ringing in his ears. The Veteran reports that his ability to engage in regular, normal conversations are impacted by the continuous ringing in his ears. See September 2015 NOD and November 2016 VA Form 9. The question before the Board is whether the Veteran’s tinnitus is etiologically related to his active duty service. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. As previously established above, the Veteran experienced acoustic trauma during his active duty service. Because the Veteran denied having recurrent tinnitus at his February 2015 VA examination, the RO determined that service connection for tinnitus was not warranted. See March 2015 rating decision. The Board notes that the Veteran’s tinnitus is subjective, as it is not a sound that can be perceived by others. In that regard, the Board finds that the Veteran has submitted multiple lay statements attesting to his current symptoms of tinnitus. Further, a review of the record indicates that other than at his February 2015 VA examination, there is no other evidence that the Veteran has denied having tinnitus. Rather, the Veteran has sought treatment for tinnitus at the VA. See April 2015 VA treatment record. Accordingly, the Board finds that the Veteran’s lay assertions regarding his symptoms of ringing in his ears are both competent and credible; thus, he has a current diagnosis for tinnitus. Regarding whether the Veteran’s tinnitus is etiologically related to his active duty service, the Board notes that the February 2015 VA examiner did not provide a medical opinion. However, the Board finds that the available evidence is still sufficient to decide the claim. Based on the Veteran’s exposure to loud noises during service, which resulted in acoustic trauma, his credible lay assertions that he has had continuous symptoms of ringing in his ears due to that acoustic trauma, and the lack of any evidence to the contrary, the Board finds that the evidence is at least in equipoise that the Veteran’s tinnitus is etiologically related to his in-service noise exposure. (Continued on the next page)   In summary, resolving all reasonable doubt in favor of the Veteran, his service connection claim for tinnitus must be granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw