Citation Nr: 18123728 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-27 725 DATE: August 2, 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 is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to a head injury sustained during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1985 to September 1989 and from February 1991 to May 1991. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Entitlement to service connection for bilateral hearing loss. For purposes of applying the laws administered by VA, impaired hearing is considered 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. When audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Id. at 157. The Veteran asserts that he has bilateral hearing loss that is the result of his period of active service. He contends that he was exposed to acoustic trauma from rifles, artillery, and large explosives as an explosive ordinance disposal technician for two years. He also reported sustaining a head injury during his period of active service. A review of his service personnel records confirms that his military occupational specialty was as an explosive ordinance disposal technician, therefore, exposure to acoustic trauma in service will be conceded. A review of the Veteran’s service treatment records does not show any audiological evaluations that meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385. Following service, VA outpatient treatment records dated from August 2012 show that the Veteran began to report hearing loss and tinnitus. A VA examination report dated in August 2013 shows that the Veteran provided a history of noise exposure and hearing loss as set forth above. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 15 5 5 LEFT 5 10 10 10 10 The examiner indicated that the use of speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of puretone average and speech discrimination scores inappropriate. The diagnosis was normal hearing in the right ear and sensorineural hearing loss in the left ear beginning at a frequency of 6000 Hertz. The examiner concluded that it was less likely than not that the Veteran’s hearing loss was the result of active service. The examiner explained that hearing was within normal limits, bilaterally, during service. The threshold requirement question here, as in any claim seeking service connection, is whether or not the Veteran has the disability for which service connection is sought, here a hearing impairment. Without evidence of such disability during the pendency of the claim or appeal (see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007)) there can be no valid claim of service connection. See 38 U.S.C. §§ 1110, 1131; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, neither the Veteran’s service treatment records nor the post-service treatment records reveal that he had a hearing loss disability in either ear in accordance with the criteria set forth in 38 C.F.R. § 3.385. Consequently, there are no audiometric findings of record in accordance with the regulatory guidelines during the pendency of this claim or appeal that have found the Veteran to have a hearing loss disability as defined in § 3.385. As such, service connection may not be granted. See Brammer, 3 Vet. App. at 225. While the Veteran is certainly capable of reporting he has or has had difficulty hearing, he cannot by his own observation establish that he has a hearing impairment for VA purposes, as official audiometry is required for that purpose. A basis upon which to grant the Veteran’s service connection claim for hearing loss has not been established, and the claim must be denied. As the preponderance of the evidence is against the service connection claim, the benefit-of-the-doubt doctrine is not helpful to the Veteran. 2. Entitlement to service connection for tinnitus. The Veteran asserts that he has current tinnitus that is manifested as a result of his period of active service. He has specifically contended that the ringing in his ears began during service and has continued ever since. As indicated above, the Veteran’s service personnel records confirm that his military occupational specialty was as an explosive ordinance disposal technician, therefore, exposure to acoustic trauma in service will be conceded. Additionally, a review of his service treatment records reveals that in April 1987, the Veteran was treated for a head injury following blunt trauma to the occipital lobe to the left side of the head after hitting his head on a steel plate. Ongoing pain behind the ear was indicated. Following service, a VA outpatient treatment record dated in August 2012 shows that the Veteran reported increasing ringing in the ears. In September 2012, he indicated that he first noticed the ringing in his ears during active service. The August 2013 VA examination report shows that the Veteran was diagnosed with tinnitus. The Veteran indicated that he began to notice tinnitus while in service, but that he could not narrow it down to a more specific time frame. The examiner opined that it was at least as likely as not that the tinnitus was due to a known etiology (such as traumatic brain injury). The examiner opined that in the presence of normal hearing and a history of head injury, the Veteran’s tinnitus was more related to head trauma than hearing or ear pathology. The Veteran has consistently asserted that he has experienced tinnitus ever since his period of active service. He is competent to report factually observable occurrences in service, the timing of the observable symptoms of his disabilities, and to receipt of medical treatment and what his providers told him about his conditions. In light of the Veteran’s reports of continuous tinnitus that he first noticed during service; the evidence of a head injury sustained in service; current tinnitus; and the probative value of the VA examination report that was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale; the Board finds that the evidence is at the very least evenly balanced as to whether the current tinnitus is related to in-service trauma to the head. As the reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. DAVID GRATZ Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel