Citation Nr: 19147167 Decision Date: 06/18/19 Archive Date: 06/17/19 DOCKET NO. 15-42 640A DATE: June 18, 2019 ORDER Service connection for right ear hearing loss is denied. Service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current disability of right ear hearing loss for VA purposes. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran’s current left ear hearing loss for VA purposes had its onset in or is otherwise related to his period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 2. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1994 to August 1996. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has recharacterized the claim of service connection for bilateral hearing loss as service connection for right ear hearing loss and service connection for left ear hearing loss for the reason explained below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 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). For purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Entitlement to service connection for right ear hearing loss. The Veteran contends that his right ear hearing loss is a result of in-service noise exposure. The Board notes that service connection may not be granted in the absence of a current disability shown at some time during the claims period. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The clinical record fails to demonstrate a current bilateral hearing loss disability. The Veteran’s service treatment records reveal that he experienced a significant threshold shift possibly due to hazardous noise exposure and was indoctrinated into a hearing conservation program. The Veteran also had several audiograms in June 1995 and July 1995 which suggested that he had hearing loss for VA purposes. In September 1995, the clinicians noted those results may have been elevated due to a non-organic overlay. The Veteran’s hearing was found to be within normal limits for VA purposes at separation. 09/03/2009, STR – Medical.   In October 2013, the Veteran was afforded a VA audiological evaluation. The examiner recorded the following pure tone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 10 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. 11/30/2013, C&P Exam. The thresholds at any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are not 40 decibels or greater, and, likewise, none of the thresholds are 26 decibels or greater. Additionally, speech recognition is at least 94 percent in the right ear. The audiological examination did not result in findings that qualified for hearing loss for VA purposes in the right ear. In August 2017, the Veteran was afforded another VA audiological evaluation. The examiner recorded the following pure tone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 5 10 10 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. 08/31/2017, C&P Exam. The thresholds at any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are not 40 decibels or greater, and, likewise, none of the thresholds are 26 decibels or greater. Additionally, speech recognition is at least 94 percent in the right ear. The audiological examination did not result in findings that qualified for hearing loss for VA purposes in the right ear. The Board recognizes the Veteran’s belief that he has a bilateral hearing loss disability due to his active service. In this regard, in Jandreau v. Nicholson, 492 F. 3d. 1372, 1377 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient is an issue of fact. In this case, the lay evidence is insufficient to establish a diagnosis of bilateral hearing loss, as none of the factors set forth above have been satisfied. While the Veteran is competent to report observable symptoms such as decreased/difficultly hearing, he is not competent to conduct audiological testing to show a current disability. Moreover, the question of whether symptoms are representative of a diagnosis is a medical question requiring medical expertise. As such, the Veteran’s assertions cannot establish the element of current disability because they are not competent and lack weight. At no time during the appeal period has the Veteran’s hearing met the standards of 38 C.F.R. § 3.385. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). The Veteran does not have bilateral hearing loss as defined by 38 C.F.R. § 3.385, service connection cannot be granted. As the preponderance of the evidence weighs against a finding for service connection for the bilateral hearing loss disability claim, the benefit-of-the-doubt rule has been considered but the weight of the evidence is against the claim. 38 C.FR. § 3.102.   Entitlement to service connection for left ear hearing loss. The Veteran contends that his left ear hearing loss is a result of in-service noise exposure. The evidence shows a current left ear hearing loss disability for VA purposes. 11/30/2013, C&P Exam; 08/31/2017, C&P Exam. Thus, a present disability has been established by the competent evidence of record. A review of the Veteran’s DD-Form 214 reveals that his military occupational specialty was infantry, gun crews, and seamanship specialist. 07/25/2014, Certificate of Release or Discharge. The Veteran stated that he was exposed to loud noises daily while in active service, including sounds from needle guns, grinders, sanders, and chipping hammer he used to maintain ships, as well as noise from flight operation or weapons fire. The Board finds that exposure to acoustic trauma to be consistent with the places, types, and circumstances of the Veteran’s service. 38 U.S.C. § 1154(a). Therefore, the Board finds that the credible and probative evidence is at least in equipoise as to whether the Veteran had in-service exposure to hazardous noise. The Veteran’s service treatment records reveal that he experienced a significant threshold shift possibly due to hazardous noise exposure and was indoctrinated into a hearing conservation program. The Veteran also had several audiograms in June 1995 and July 1995 which suggested that he had hearing loss for VA purposes. In September 1995, the clinicians noted those results may have been elevated due to a non-organic overlay. The Veteran’s hearing was found to be within normal limits for VA purposes at separation. 09/03/2009, STR – Medical. The Veteran’s post-service treatment records reveal that the Veteran reported having a gradual decrease in hearing over the years that began while in active service. 10/30/2017, Medical Treatment Record – Government Facility. In an October 2013 VA examination, the Veteran was diagnosed with left ear hearing loss. The examiner opined that the Veteran’s condition is less likely than not related to service because the Veteran’s in-service audiological exams at enlistment and separation revealed no significant change in his hearing. The examiner further concluded that the in-service audiograms in June 1995 and July 1995 are unreliable for rating purposes because subsequent audiograms showed no hearing loss for VA purposes. The examiner did conclude that the Veteran’s tinnitus was related to noise exposure in service. 11/30/2013, C&P Exam. In an August 2017 VA examination, the Veteran’s left ear hearing loss diagnosis was noted. The examiner also opined that the condition is less likely than not related to service based on the same rationale as the October 2013 VA examination. The examiner further opined that the Veteran’s left ear hearing loss is not proximately due to his tinnitus, as tinnitus is not a disorder, but a symptom. Hearing loss is not a symptom of tinnitus and cannot be caused by tinnitus. 08/31/2017, C&P Exam. After a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current left ear hearing loss is related to noise exposure during his active service. The Veteran is competent to describe what he experienced in service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In this regard, the Veteran is competent regarding the in-service noise exposure. Furthermore, the Veteran stated that he has experienced hearing loss since during his active service. The Veteran is competent to describe symptoms observable to his senses such as hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003) (stating that “ringing in the ears is capable of lay observation”). The Board also finds that his statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-38 (Fed. Cir. 2006). The Board acknowledges the negative opinions provided by the October 2013 and August 2017 examiners. The Board places less probative weigh on these opinions, as the rationales are based solely on the in-service audiograms and did not specifically provide an etiology of the Veteran’s current disability. Furthermore, the Veteran indicated that he experienced hearing loss since the mid-1990s and because sensorineural hearing loss (organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection is appropriate solely based on evidence of continuity of symptomatology under § 3.303(b). Walker, 708 F.3d at 1336-40. In view of the foregoing, and in consideration of the credible lay statements, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current left ear hearing loss is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Han, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.