Citation Nr: 21002436 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-20 152 DATE: January 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of bilateral hearing loss disability for VA purposes. 2. Tinnitus is etiologically related to hazardous noise exposure sustained while in active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1979 to August 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veteran’s Law Judge in November 2019. A transcript of that hearing has been added to the claims file. The Board notes that the Veteran appealed the issue of entitlement to service connection for a right knee disability and a left hip disability. However, a review of the record shows that the Veteran was granted entitlement to service connection for a right knee disability and a left his disability in August 2018 rating decisions. There is no indication from the record that the Veteran has disagreed with either the ratings or effective dates assigned in the August 2018 rating decisions. As such, those decisions constitute a full grant of the benefit sought on appeal and the Board has limited its consideration accordingly. Service Connection – Bilateral Hearing Loss The Veteran has asserted that he has bilateral hearing loss disability that is related to his in-service noise exposure. The Veteran’s DD Form 214 shows that his military occupational specialty (MOS) during active service was Tactical Wire Operations Specialist. Additionally, the Veteran’s record reflect service with artillery units. As such, the Board concedes that the Veteran was exposed to hazardous noise during active service. Service treatment records (STRs) do not show complaints of, treatment for decreased hearing acuity while the Veteran was in active service. Further, there is no indication that the Veteran had bilateral hearing loss disability for VA purposes while in active service. In February 2016, the Veteran was afforded a VA audiology evaluation. Audiometric testing results from that evaluation did not show the Veteran to have bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. A review of the medical evidence of record is silent for any other audiometry testing results showing the Veteran to have bilateral hearing loss disability for VA purposes. While the laypersons are competent to report observable symptoms, the Veteran is not competent to provide a diagnosis of bilateral hearing loss disability for VA purposes as that would require medical testing, knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a diagnosis of bilateral hearing loss disability in this case. For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, there are specific requirements as to what constitutes a hearing loss disability for VA purposes. There is no indication from the record that the Veteran has had audiometric testing that reveal him to meet those requirements. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for bilateral hearing loss disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection – Tinnitus The Veteran has asserted that he has tinnitus as a result of his in-service noise exposure. As noted above, the Board concedes that the Veteran was exposed to hazardous noise while in active service. STRs are silent for complaints of, treatment for, or a diagnosis of tinnitus while the Veteran was in active service. However, the Veteran has reported that he first experienced symptoms of tinnitus while in active service and that his symptoms have continued since that time. The Board notes that the Veteran is competent to report when he first experienced symptoms and that they have continued since service. Moreover, the Board finds the Veteran to be credible in that respect. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In February 2016, the Veteran was afforded a VA audiological evaluation. At that time, he reported that that his tinnitus had its onset during active service. The examiner diagnosed tinnitus and opined that tinnitus was less likely as not caused by or the result of in-service noise exposure. In this regard, the examiner noted that there were no complaints of tinnitus in service, and there was no associated hearing loss or significant threshold shifts in service to suggest tinnitus had its onset in service. The Board finds that the February 2016 VA medical opinion is inadequate for adjudication purposes. In this regard, the examiner did not consider the Veteran’s competent and credible statements regarding the onset and continuity of his symptoms. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. The Board notes 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, (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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As noted above, the Veteran is competent to identify tinnitus, and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently and credibly reported that he first experienced tinnitus while in active service and that he has continued to experience tinnitus since that time. The Veteran has a current diagnosis of tinnitus, and there is no adequate opinion against the claim. Therefore, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.