Citation Nr: 18159469 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-00 324 DATE: December 20, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record shows that the Veteran’s bilateral hearing loss is not related to service. 2. The Veteran’s tinnitus began in service and has continued to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1131, 1137, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1973 to February 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests sensorineural hearing loss or tinnitus within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term “chronic disease” refers to those diseases, such as hearing loss, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 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. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to service connection for bilateral hearing loss The Board finds service connection is not warranted for bilateral hearing loss. Although the record reveals that the Veteran currently has hearing loss for VA purposes, the Board finds that bilateral hearing loss was not present until more than one year after the Veteran’s discharge from service and is not related to service. The Veteran’s military occupational specialty (MOS) was that of military police. The Board notes that exposure to noise from small arms fire is consistent with the duties of a military policeman. The Veteran’s STRs contain no complaints, treatment, or diagnosis of bilateral hearing loss. Additionally, audiometric examinations of the Veteran’s bilateral hearing were within normal limits throughout service, and there is no evidence of a diagnosis of bilateral hearing loss manifesting to a compensable degree within one year following discharge from active military duty. The Veteran was afforded a VA examination to determine the severity of his hearing loss in August 2016. On that occasion, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG (1000-4000) RIGHT 30 30 40 50 55 44 LEFT 30 25 35 40 50 38 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. Such constitutes hearing loss for VA purposes. After an in-person examination and a review of the Veteran’s claims file, the VA examiner opined that it is less likely than not (less than a 50 percent chance) that the Veteran’s hearing loss is due to military noise exposure. The examiner explained that the Veteran’s hearing thresholds were within normal limits at enlistment and separation from active duty. No contrary medical opinion is of record. In his August 2016 notice of disagreement (NOD) the Veteran stated that when he separated from active duty his hearing was not evaluated. However, the Veteran’s separation examination dated in January 1975 shows that audiometric testing was conducted and that the Veteran’s hearing was normal for VA purposes. The Board acknowledges the Veteran’s contention that his current hearing loss is related to service. Although the Veteran might believe his hearing loss symptoms are related to in-service noise exposure, he is not competent to determine that his bilateral hearing loss is related to in-service noise exposure, as such requires specialized medical knowledge. In short, the Board places greater probative value on the opinion of the VA examiner than on the Veteran’s statements regarding etiology. Because the competent medical evidence indicates that the Veteran’s hearing loss is unrelated to service, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus began in service after firing various small arms and has continued to the present. The Board finds the Veteran credible in this regard. Because tinnitus is a disability capable of lay observation, and because his tinnitus symptoms have continued from service to the present, the Board finds that service connection for tinnitus is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham