Citation Nr: 21069095 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-48 184 DATE: November 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's right ear hearing loss is no related to active-duty service. 2. The Veteran does not have current left ear hearing loss. 3. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September1970 to September 1972. The Veteran's representative submitted correspondence in May 2021 canceling his hearing request. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Moreover, even if a disability is not subject to presumptive service connection, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Service connection may only be granted for a current disability, and therefore, when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for bilateral hearing loss The Veteran has claimed entitlement to service connection for bilateral hearing loss. The Veteran has specifically asserted that he was exposed to industrial noise during service in the engine room as an electrical repairman as evidenced by his military record. In cases where a hearing loss disability is claimed, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies 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. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id at 159. In this case, based on the evidence of record, the Board determines that service connection is not warranted for the Veteran's right ear hearing loss even though the Board concedes in service noise exposure. As a preliminary matter, the Veteran's 1972 separation examination did not show hearing loss although he did report many other impairments at separation. Further, the post-service medical evidence includes statements to the Veteran's medical providers that he had hearing loss since service. However, the objective medical evidence does not demonstrate any symptoms, manifestations, or a diagnosis related to hearing loss until approximately 2015. Therefore, continuity of symptoms is not shown based on the clinical evidence, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). As part of this claim, the Board recognizes the statements from the Veteran regarding his history of right ear hearing loss since service. In this regard, while the Veteran is not competent to make a diagnosis related to these disorders, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for the asserted condition weighs against the Veteran's claim. Further, the Veteran's treatment records contradict his assertions that his symptoms have persisted since service. Specifically, the Veteran's history of hearing loss is inconsistent with his 1972 separation examination and treatment records. Lastly, the Board notes that the Veteran filed a claim for VA benefits approximately two years prior to filing the claim on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorder he now claims is inconsistent with symptoms existing since service. Next, service connection may also be granted when the evidence establishes a medical nexus between active-duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. Here, the Board places significant value on the opinion of the VA examiners who evaluated the Veteran's right ear hearing loss in January 2015. These examiners performed a detailed review of the Veteran's service and medical treatment records and a thorough physical examination. Specifically, the examiners opined that the Veteran's right ear hearing loss was not related to service because the Veteran's hearing was normal at separation and he did not have any complaints until many years later and due to his service as factory worker for 15 years. Additionally, the Board has considered the statements made by the Veteran relating his right ear hearing loss to active service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the diagnosis and etiology of his right ear hearing loss. See Jandreau, 492 F.3d at 1377, n.4. Hearing loss is not readily identifiable, as it does not involve a simple identification that a layperson is competent to make. Instead, the diagnosis of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his disability is related to service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the service connection claims for right ear hearing loss, and there is no doubt to be otherwise resolved. As such, the appeal is denied. With respect to left ear hearing loss, the Board finds that service connection is not warranted for hearing loss in the left ear. While the Board concedes in-service acoustic trauma as previously discussed, and finds the Veteran's statements regarding his hearing loss since service credible, service connection for right ear hearing loss is not warranted because the Veteran does not have right ear hearing loss as defined by VA. As a preliminary matter, the Veteran's 1972 separation examination does not reveal left ear hearing loss. However, post-service, the Veteran was afforded a VA examination in January 2015 which indicated that the Veteran did not have left ear hearing loss for VA purposes under 38 C.F.R. § 3.385, as he did not have auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hz of 40 dB or greater; or auditory thresholds for at least three of the above frequencies of 26 dB or greater; or speech recognition scores less than 94 percent. Based on this evidence, there is no clinical evidence to support the Veteran's argument that he has left ear hearing loss. Therefore, service connection for left ear hearing loss is not warranted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). The Board also acknowledges the Veteran's statements regarding his left ear hearing loss since active service, but also finds that evidence to be less persuasive. A lay person is competent to report hearing loss symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that he has left ear sensorineural hearing loss, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis. Accordingly, service connection for left ear hearing loss is not warranted. 2. Entitlement to service connection for tinnitus In this case, the Board determines that service connection is warranted for the Veteran's tinnitus. Here, as previously noted, the Board has conceded in-service noise exposure. Next, the Veteran's credible statements, in conjunction with the objective medical evidence, reflect that his tinnitus was caused by acoustic trauma from his in-service noise exposure. The Board acknowledges the negative evidence from the January 2015 VA examiner which indicates that the Veteran's tinnitus is not related to service. Nevertheless, the examiner's opinions, as it related to tinnitus, appear to be based solely on the fact that the medical records do not contain reports of tinnitus until after service. Therefore, given that the Veteran is competent and credible to report symptoms of tinnitus, the Board finds that the evidence is at least in equipoise. Therefore, considering the totality of the evidence, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for tinnitus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, Associate Counsel