Citation Nr: 20026032 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 18-34 917 DATE: April 15, 2020 ORDER 1. Entitlement to service connection for a right ear hearing loss disability is denied. REMANDED 2. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT Right ear hearing loss disability is not shown to have had its onset in service, sensorineural hearing loss was not manifested to a compensable degree within one year of service discharge, and right ear hearing loss disability is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1961 to January 1966. He also had periods of Active Duty for Training (ACDUTRA) from 1976 to 1997. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge in January 2020. The file was left open for 30 days until February 14, 2020. The Veteran submitted VA treatment records during this time period. The Board notes the Veteran testified that he received an audiogram during VA treatment in December 2019; however, this audiogram has not been added to the file. The Board finds there has been no duty to assist error in regard to this VA treatment record since the audiogram could only show a fact that is already of record. Specifically, the audiogram would likely show a right ear hearing loss disability, but the April 2018 VA examination substantiated this fact; therefore, it is unnecessary to remand to retrieve the December 2019 audiogram. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, which is an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under VA regulations, hearing impairment constitutes a disability for VA purposes when auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. 1. Entitlement to a right ear hearing loss disability. The Veteran contends his right ear hearing loss disability is the result of noise exposure in service. He testified that he worked three and five inch heavy guns on Coast Guard cutters. Working on these guns required firing them and qualifying on them at least once a year. The Veteran testified that he did not remember if he used hearing protection when firing the heavy guns. He attended a VA hearing test in December 2019 to receive his first set of hearing aids. The Veteran noted that his hearing loss is constant. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a right ear hearing loss disability. The reasons follow. As to evidence of a current disability, an April 2018 VA examination report shows that the Veteran’s hearing loss rose to the level of a right ear hearing loss disability as defined by 38 C.F.R. § 3.385. Therefore, the Veteran meets the first element of a service-connection claim. As to evidence of an in-service disease or injury, the Veteran is service connected for a left ear hearing disability as the result of in-service acoustic trauma; therefore, noise exposure is conceded. Thus, the Veteran meets the second element of a service-connection claim. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against such a nexus. For example, the first Report of Medical Examination (RME) of record in September 1974 shows that the Veteran’s ears were clinically evaluated as normal. This RME showed his hearing was normal, but the Board notes this was evaluated by whispered voice testing only. On the September 1974 Report of Medical History (RMH), the Veteran denied a history of hearing loss and ear trouble. The Veteran certified on the July 1975 Certificate of Physical Condition (CPC) that he was in approximately the same physical condition as he was during his last examination in July 1974 without physical defects or conditions that would disqualify or preclude him from the performance of military duty. He certified the same on his December 1976 CPC related to his last examination in June 1975. The Veteran stated on his January 1977 CPC that there was no change in his physical condition during his period of active duty from January 12, 1977 to January 28, 1977, and that he had no new disability, defect, or illness. On the March 1978 RME, the Veteran’s ears were clinically evaluated as normal, and the hearing test showed no right ear hearing loss disability. The Veteran denied a history of hearing loss and ear trouble on the March 1978 RMH. On the January 1979 and 1981 RMEs, the Veteran’s ears were clinically evaluated as normal, and the hearing tests showed no right ear hearing loss disability. The Veteran denied a history of hearing loss and ear trouble on the March 1982 and 1983 RMHs. The March 1983 RME showed no right eat hearing loss disability, and his ears were clinically evaluated as normal. February 1984, 1985, and 1986 RMEs show the Veteran’s ears were clinically evaluated as normal, and the hearing test did not show a right ear hearing loss disability. He denied a history of hearing loss and ear trouble on the February 1984, 1985, and 1986 RMHs. The Veteran denied a history of hearing loss and ear trouble on the January 1987 RMH. His ears were clinically evaluated as normal on the January 1987 RME, and no right ear hearing loss disability is shown on the hearing test. The Veteran denied a history of hearing loss and ear trouble on the February 1988 RMH. His ears were clinically evaluated as normal on the February 1988 RME, and no right ear hearing loss disability is shown on the hearing test. On the December 1990 RME, the Veteran’s ears were clinically evaluated as normal, and no right ear hearing loss disability was shown on the hearing test. He denied a history of hearing loss and ear trouble on the December 1990 RMH. The Veteran also denied a history of hearing loss and ear trouble on the August 1994 RMH. The August 1994 RME clinically evaluated the Veteran’s ears as normal, and the hearing test did not show a right ear hearing loss disability. This evidence shows that while the Veteran had noise exposure during service, he did not experience right ear hearing loss disability during service and in the years following service, and he regularly denied a history of hearing loss more than eight years after his first period of service, which is evidence against a nexus between the right ear hearing loss disability and the Veteran’s service. Additionally, in a May 2018 VA examination report, a VA audiologist concluded that the Veteran’s right ear hearing loss disability was not related to service. She noted that the earliest hearing test of record dated March 1978 showed normal puretone thresholds. This hearing test came 12 years after active duty discharge. The examiner cited to a National Academy of Sciences article titled “Noise and Military Service-Implications for Hearing Loss and Tinnitus,” which showed there was no significant scientific basis for the existence of delayed-onset hearing loss. As an aside, this same examiner found that the Veteran’s left ear hearing loss disability was related to service. This is evidence against a nexus between the right ear hearing loss disability and service. VA treatment records submitted in January 2020 show the Veteran has been diagnosed with sensorineural hearing loss, but it does not provide a nexus between the Veteran’s right ear hearing loss disability and service. VA treatment records and the April 2018 VA examination report show that the Veteran has been diagnosed with right ear sensorineural hearing loss, which is a chronic disease, where service connection can be granted if the chronic disease manifests to a compensable degree within one year following service discharge. There is no competent evidence upon which to find that right ear sensorineural hearing loss manifested to a compensable degree within one year following service discharge. Thus, the preponderance of the evidence is against presumptive service connection for right ear sensorineural hearing loss. While the Veteran has attempted to establish a nexus through his own lay assertions that his right ear hearing loss disability is related to service, he is not competent to offer opinions as to the etiology of a hearing loss disability. A hearing loss disability requires specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions on etiology. Therefore, the Veteran’s opinion is nonprobative evidence, and there is no competent and probative evidence of a positive nexus between the current right ear hearing loss disability and service upon which to weigh against the negative VA opinion. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim for service connection for a right ear hearing loss disability. As the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connect for tinnitus is remanded. The Veteran has submitted VA treatment records that establish a current disability of occasional, intermittent tinnitus. He had also testified at the January 2020 hearing that he had tinnitus. While the Veteran has been afforded a VA examination for tinnitus, this examination did not provide a nexus opinion because the Veteran denied tinnitus at that time. The Board finds that remand is warranted to fully assist the Veteran with the development of his claim for service connection for tinnitus. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records beginning in January 2020. 2. Schedule the Veteran for a VA examination to evaluate the Veteran’s tinnitus to determine the likely etiology. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.