Citation Nr: 21072341 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-48 377 DATE: December 2, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss as defined by VA regulation. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran's left ear hearing loss is related to acoustic trauma during service. 3. There is an approximate balance of positive and negative evidence as to whether the Veteran's tinnitus is related to acoustic trauma during service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 May 1967. In August 2021 he and his spouse testified at a virtual Board hearing. A transcript of the hearing is of record. Service Connection The Veteran is seeking service connection for hearing loss and tinnitus. 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; 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as "chronic" by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. At his August 2021 hearing, the Veteran testified that his hearing loss and tinnitus are the result of noise exposure related to his military duties as a missile tracking and radar operator during service. For the purposes of applying the laws administered by VA, 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 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability 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). See Hensley, 5 Vet. App. at 159. Because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran's DD-214 shows that he served as a missile tracking and radar operator, a military occupational specialty (MOS) likely associated with some exposure to hazardous noise levels. He was also awarded Marksman Badges (Rifle and Carbine M-2) and a Basic Missleman Badge. Thus, it is plausible that he had some acoustic trauma in service. 38 U.S.C. § 1154(a). In addition, a July 2015 VA audiogram confirms he currently has left ear hearing loss disability for VA purposes. Here, there are no findings or diagnosis of hearing loss shown in service treatment records. There is also no medical evidence suggesting that hearing loss was diagnosed within the one-year presumptive period after service. 38 C.F.R. §§ 3.307, 3.309. During VA examination in July 2015, the audiologist noted the Veteran's history of military noise exposure from his assignment to an artillery unit, thus indicating at least a moderate probability of noise exposure. However, a comparison of his audiogram at separation in 1967 with his enlistment audiogram in 1964 revealed evidence of no noise injury (i.e., no significant hearing threshold shifts in service. The Veteran also reported 12 years of occupational noise exposure from yearly weapons qualifying as a police officer and security guard with hearing protection. He also reported recreational noise exposure from target shooting and the lawnmower also with hearing protection. The Veteran reported the onset of tinnitus occurred right after weapons qualification in 1967. See July 2015 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). Audiometric testing shows puretone thresholds of 5, 10, 10, 15, and 10 decibels in the right ear, at the test frequencies 500, 1000, 2000, 3000, and 4000 Hz. Puretone thresholds for the left ear at those same frequencies were 5, 10, 15, 55, and 45 decibels. The speech recognition score was 94 percent for the right ear and 92 percent for the left ear. These findings show the Veteran had a left ear hearing loss disability (based on threshold above 40 decibels at 3000Hz and 4000 Hz). The hearing thresholds for the right ear did not meet the criteria for disability under VA regulations. See 38 C.F.R. § 3.385. The examiner concluded the Veteran's tinnitus was at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Id. right ear In the present case, the record fails to demonstrate that the Veteran has right ear hearing loss disability for which service connection can be awarded. According to the evidence of record, the measurements of his right ear hearing acuity do not satisfy any of the three alternate bases for establishing hearing loss disability under 38 C.F.R. § 3.385. In other words, there is no pure tone threshold in any critical frequency of 40 decibels or greater, or three or more frequencies of 26 decibels or greater, or speech recognition score less than 94 percent. Therefore, under the law, there is nothing to service connect. Based on this evidence, there is no right ear hearing loss disability at any time during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007) (stating that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Absent evidence of a present right ear hearing loss disability, or at the very least a showing of this required disability at some point since the filing of this claim, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (providing that in the absence of proof of a present disability, there can be no valid claim). While the Veteran is competent to report noise exposure and diminished hearing since service, difficulty hearing is not synonymous with a hearing loss disability for VA purposes, and he is not competent to diagnose hearing loss or to opine that it meets the criteria for qualification as a disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As the Veteran is not shown to be other than a layperson without the appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on the medical matter upon which this claim turns. Id. The preponderance of the evidence is against the claim for service connection for right ear hearing loss and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). left ear hearing loss and tinnitus After carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that it is in at least approximate balance as to whether the Veteran's current left ear hearing loss and tinnitus are related to service. The unfavorable evidence consists of service treatment records, which are negative for hearing complaints, as well as the almost 50-year post-service period during which the Veteran did not seek or require any form of treatment or evaluation for pertinent complaints. In addition, the VA audiologist noted the Veteran's in-service noise exposure, but concluded that hearing loss and tinnitus did not result from it. The audiologist explained that Veteran's entrance exam in 1964 revealed normal hearing and that subsequent hearing test at separation in 1967 did not reveal significant positive threshold shifts. However, the record also contains favorable evidence primarily the Veteran's likely exposure to some degree of acoustic trauma during service. Moreover, his testimony of impaired hearing since service is both competent and credible, and thus is additional positive evidence that supports a finding of nexus. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). This supporting evidence places the pertinent record in relative equipoise. The Board notes that while we cannot ignore or disregard the negative medical conclusions, see Willis v. Derwinski, 1 Vet. App. 66 (1991), we are free to assess evidence and are not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the VA opinion is problematic in that the audiologist seemed to rely primarily on the Veteran having normal hearing during service and at discharge. However, as noted above, the absence of hearing loss at discharge from service is not a bar to service connection. See Ledford, 3 Vet. App at 89. Because the VA opinion does not sufficiently assist the Board in resolving this claim, it cannot serve as the basis of a denial of service connection. As to the Veteran's claim for service connection for tinnitus, the Board notes that the VA audiologist opined that the Veteran's tinnitus was as likely as not related to his hearing loss. Accordingly, in the present appeal, the Board finds that service connection for tinnitus is also warranted. In this case, any doubt that remains as to whether at least some of his hearing problems are attributable to service, as opposed to some other cause such as his post-service employment, is resolved in favor of the Veteran and service connection for left ear hearing loss and tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.