Citation Nr: 18159452 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-22 718 DATE: December 20, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran is diagnosed with a bilateral hearing loss disability for VA purposes most likely due to noise exposure during service. 2. The Veteran is not diagnosed with tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to August 1966. The case is on appeal from a February 2015 rating decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. “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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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, 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. 1. Service connection for bilateral hearing loss The Veteran contends that he has hearing loss due to being around heavy artillery for the entire time of his 24-month service with no ear protection. See 1/8/2016 Testimonial Statement. The Board concludes that the Veteran has a current diagnosis of hearing loss that is related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A February 2015 VA examination confirms a hearing loss disability. His hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 45 60 60 LEFT 30 30 45 55 50 Because auditory thresholds at this examination were 40 decibels or greater in any of the frequencies a hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. In light of this evidentiary record, the first requirement to establish service connection, evidence of a current disability, has been met as to the claim. See Davidson, 581 F.3d at 1316. In-service noise exposure is also established. His military occupational specialty (MOS) was 13A10, Field Arty Basic. This MOS is associated with a high probability of hazardous noise exposure. As such, in-service noise exposure is established. A hearing loss disability during service is not established. His July 1966 service separation examination includes audiometry results. It is unclear whether the results were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. The July 1966 separation examination was conducted prior to September 9, 1975, so the Board will therefore consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. The ISO-ANSI standards are given in parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) -- 5 (10) LEFT 5 (20) 5 (10) 0 (10) -- -10 (-5) These test results do not establish the onset of a hearing loss disability during service. See 38 C.F.R. § 3.385. Although not starting during service, the February 2015 VA examiner opined that it is at least as likely as not that the Veteran’s 20-plus years working in a factory after service was “the larger cause” of this Veteran’s hearing loss, not service. The VA examiner explained that the Veteran was in service for 2 years whereas he worked in a textile factory for 20 plus years. This VA opinion is phrased in the negative. Reading it as a whole, however, gives a positive opinion. That is, the VA examiner attributed the Veteran’s post-service work in a mill as the “larger cause” of his hearing loss, which implies that his in-service noise exposure was a minor cause. To this extent, the critical question in this case is not whether the “larger cause” for the Veteran’s hearing loss was from his post-service noise exposure. Rather, the critical question is whether the Veteran’s in-service noise exposure contributed in any way to his current condition. The relative degrees of contribution are irrelevant. See Cohen v. Brown, 10 Vet. App. 128, 141 (1997) (discussing the “eggshell plaintiff rule” in the context of VA claims). Here, the VA examiner’s opinion indicates that his in-service noise exposure did contribute, at least to some degrees. As such, this opinion supports an award of service connection. Accordingly, the evidence is in equipoise in establishing a nexus to service. In light of the foregoing, the claim is granted. 2. Service connection for tinnitus The Veteran contends that he also has tinnitus due to in-service noise exposure. The critical question for the Board is whether the Veteran has a current diagnosis of tinnitus. The Board concludes that the Veteran does not have a current diagnosis of tinnitus and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The February 2015 VA examiner evaluated the Veteran and determined that he had no tinnitus. A VA Outreach note from March 2015 also shows that the Veteran complained of hearing loss, but denied associated tinnitus. Likewise, the Veteran underwent an evaluation by VA Audiology in October 2015, at which time he denied tinnitus (but “reported transient ear noise that occurs once per month and lasts approximately 2-3 minutes”). Generally, a lay person is competent to identify symptoms of tinnitus. See, e.g., Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); See Charles v. Principi, 16 Vet. App 370, 374-75 (2002). The instant Veteran’s claim form included a claim for “ringing” of the ears. The Board finds, however, that the identification of the claim on the claim form alone is not an indication of a current diagnosis. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds more probative the VA medical records and examination, which confirm that his symptoms do not result in a diagnosis of tinnitus. To this extent, the October 2015 VA Audiology note indicates symptoms of “transient ear noise.” The medical etiology of this symptomatology is not identified. For purposes of this appeal, this is not relevant. It is enough that the competent evidence establishes this symptomatology as not consistent with a diagnosis of tinnitus. To the extent this symptomatology is associated with hearing loss, such evidence tends to concern the severity and degree of the hearing loss disability, which is a matter that must be addressed when assigning an initial disability rating for that disability. See Boggs v. Peake, 520 F.3d 1330, 1335 (Fed. Cir. 2008) (explaining that “the appropriate time to consider the veteran’s symptoms is when determining the amount of compensation to which the veteran is entitled.”); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see, also, Ferenc v. Nicholson, 20 Vet. App. 58, 62-63 (2006) (finding that that “compensation” is a distinct legal term from both “rating” and “service connection” . . . Congress has created a clear distinction between these terms.”). That question is currently outside the scope of this decision as it pertains to the award of service connection for tinnitus. Absent a current diagnosis of tinnitus, the claim is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel