Citation Nr: A19001548 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190409-9349 DATE: September 26, 2019 ORDER Service connection for a left ear hearing loss disability is granted. Service connection for a tinnitus disability is granted. Service connection for a right ear hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran has a left ear hearing loss disability (as defined for VA compensation purposes) and an in-service injury per favorable findings by the Agency of Original Jurisdiction (AOJ); the Veteran has provided a competent and credible lay report that his hearing loss began during service (approximately December 1969) which is corroborated by evidence of a significant threshold shift in his hearing loss during service. [The Board notes that the National Institute for Occupational Safety and Health suggests that a significant threshold shift is a 15-decibel hearing loss shift or more at any one frequency from 500 Hertz to 4000 Hertz. Between the Veteran’s June 1968 enlistment examination and February 1972 separation examination, his left ear hearing threshold shifted 15 decibels at 500 Hz, 15 decibels at 3000 Hz (presume 0 in 1968 due to no reading taken), and 20 decibels at 4000 Hz.] The Board cannot assign significant probative weight to the January 2019 VA audiological opinion because it provided an insufficient rationale for its negative nexus opinions and because the examiner did not explain or support her conclusion that the Veteran did not have a threshold shift in his hearing during service. Additionally, the examiner erred by focusing on the lack of a qualifying hearing loss disability (for VA compensation purposes) during service, which is not a requirement for service connection. 2. The Veteran has provided competent and credible reports that he experiences tinnitus symptoms and that he gradually noticed his symptoms that he reports began “during 1969 to 1971 while stationed at Robins A[ir] F[orce] base” (see January 2019 VA audiological examination); there is evidence of an in-service injury per an AOJ favorable finding, which is corroborated by evidence of a significant threshold shift in his hearing loss during service. [The Board notes that the National Institute for Occupational Safety and Health suggests that a significant threshold shift is a 15-decibel hearing loss shift or more at any one frequency from 500 Hertz to 4000 Hertz. Between the Veteran’s June 1968 enlistment examination and February 1972 separation examination, his left ear hearing threshold shifted 15 decibels at 500 Hz, 15 decibels at 3000 Hz (presume 0 in 1968 due to no reading taken), and 20 decibels at 4000 Hz. For his right ear, hearing threshold shifted 15 decibels at 500 Hz, 15 decibels at 1000 Hz, 15 decibels at 2000 Hz, and 20 decibels at 3000 Hz (presume 0 in 1968 due to no reading taken).] The Board cannot assign significant probative weight to the January 2019 VA audiological opinion because the examiner provided an insufficient rationale for the negative nexus opinions and did not explain or support the conclusion that the Veteran did not have a threshold shift during service. Additionally, the examiner erred by focusing on the lack of reported tinnitus during service. 3. The Veteran’s right ear hearing loss is not presently severe enough to qualify as a current disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ear hearing disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a tinnitus disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a right ear hearing disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to April 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 Appeals Modernization Act (AMA) rating decision that considered the evidence of record on that date. In April 2019, the Veteran timely appealed this decision to the Board by requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). For the reasons explained above, the appeals for service connection for left ear hearing loss and tinnitus disabilities are granted. Service connection for a right ear hearing loss disability is denied. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels (dB) or greater, where the auditory thresholds for at least three of these frequencies are 26 dB or greater, or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. In the absence of a current diagnosed disability, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for a current disability to be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that it has reviewed all the evidence in the Veteran’s 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Factual Background The AOJ found that a qualifying event, injury, or disease had its onset during the Veteran’s service, namely his military occupational specialty (MOS) was radio repair/communication technician, which is rated as having a moderate probability for hazardous noise exposure See February 2019 rating decision. The Veteran reported that his MOS as a radio operator was the cause of his present hearing loss and tinnitus. December 2018 VA Form 21-526EZ. The Veteran reported that his hearing loss and tinnitus began approximately in December 1969. See Id. The Veteran reported that his hearing loss and tinnitus impact his work and daily life. See January 2015 VA audiological examination. The January 2017 VA audiological examination revealed that Puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 35 20 LEFT 25 30 35 35 30 Speech audiometry revealed speech recognition (Maryland CNC) ability at 96% for the right ear. Speech audiometry revealed speech recognition (Maryland CNC) ability at 100% for the left ear. Analysis To qualify for a right ear hearing loss disability, the Veteran would need to have a hearing loss threshold of 26 decibels in three different frequencies or a hearing loss threshold of 40 decibels or more in any one frequency or have speech recognition scores using the Maryland CNC Test that are less than 94 percent. 38 C.F.R. § 3.385. The results of the January 2019 VA audiological examination report establish that the Veteran does not currently have a hearing loss disability (as defined for VA compensation purposes) in the right ear. None of his readings at any of the frequencies reached 40 decibels. Additionally, for the right ear, the Veteran only has two threshold readings of 26 decibels or greater (30 decibels at 2000 Hz and 35 decibels at 3000 Hz). Although the readings at 500 and 1000 Hz are very close, the Board has no objective evidence in the record to contradict these readings. Additionally, the 96% speech recognition (Maryland CNC) determination for the right ear exceed the 94% required and does not qualify. Again, there is not contrary evidence in the record to rebut the report of the VA audiological examination. Accordingly, because the preponderance of the evidence is against a finding that the Veteran’s right hearing loss is not severe enough to qualify as a disability for VA purposes, the claim for service connection for right ear hearing loss must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.385; Gilbert, 1 Vet. App. at 55. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Arritt, 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.