Citation Nr: 21072643 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-41 508 DATE: December 3, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran does not have right ear hearing loss for VA compensation purposes. 2. Left ear hearing loss was not present in service or for years thereafter, and is not etiologically related to active military service. 3. Tinnitus was not present in service or for years thereafter, and is not etiologically related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. met. . 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for tinnitus have not been met. et. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to August 1982. In March 2019 and September 2021, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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). Specific to claims for service connection, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the 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). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for bilateral hearing loss 2. Service connection for tinnitus The Veteran contends that he has currently diagnosed bilateral hearing loss and tinnitus, related to noise exposure from shooting M16s, and from vehicles in the motor pool during active duty service. Service treatment records are negative for any evidence of hearing loss or tinnitus during active duty or at discharge. Furthermore, the Veteran's DD-214 shows that his military occupational specialty (MOS) was Material Storage and Handling Specialist, which has a low probability of exposure to hazardous noise in the military. However, the Board notes that the absence of service treatment records showing in-service evidence of hearing loss is not fatal to the claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran was afforded a VA audiology examination in October 2021. Audiological findings at that time revealed normal hearing in the right ear. There is no other medical evidence of record, VA or private, showing current right ear hearing loss since the Veteran filed his claim for service connection for hearing loss in December 2015. Simply stated, while the Veteran's exposure to loud noise during service is conceded, his right ear hearing is still normal. In the absence of proof of a current right ear hearing loss disability as defined by 38 C.F.R. § 3.385, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Accordingly, the preponderance of the evidence is against the claim and service connection for right ear hearing loss is not warranted. Post-service medical records show diagnoses and treatment for left ear hearing loss and tinnitus many years after the Veteran's discharge. However, these records do not show that the diagnosed hearing loss or tinnitus are related to the Veteran's active military service. An October 2021 VA examiner opined that the Veteran's diagnosed left ear sensorineural hearing loss and tinnitus were less likely than not due to military noise exposure. The rationale was that the Veteran's reports placed him in some situations with hazardous noise during service. However, his MOS was 76 D Material Storage. Furthermore, his 1980 entry hearing test revealed hearing within normal limits, bilaterally, and the 1984 hearing test (after separation, inactive service hearing test) revealed hearing within normal limits, bilaterally, with no significant threshold shift when compared to the entry hearing test. No permanent significant threshold shift during service (or no permanent significant threshold shift since entry into service) indicates hearing thresholds weren't significantly impacted during or by service. The examiner also noted that there were post-service hearing tests from 2017 and 2018, which revealed complaints of tinnitus and hearing loss that originated in the past 10 years or less. Tinnitus and hearing loss due to noise typically manifest around the time of exposure. The examiner concluded that based on the available evidence and the Veteran's reports, left ear hearing loss and tinnitus were less likely than not due to or caused by military service. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given that the lack of evidence of left ear hearing loss or tinnitus at discharge, and the decades-long gap between service and the first notation of left ear hearing loss or tinnitus, the Board does not find the Veteran's current accounts of left ear hearing loss or tinnitus since service to be credible. As such, the Board finds the October 2021 VA examiner's opinion is supported, and another examination is not necessary. There is no other medical evidence of record, VA or private showing that the Veteran's current left ear hearing loss or tinnitus are related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of left ear hearing loss or tinnitus, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a left ear hearing loss or tinnitus. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his left ear hearing loss and tinnitus are due to active military service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed left ear hearing loss or tinnitus and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his left ear hearing loss or tinnitus. 38 C.F.R. § 3.159 (a)(1), (2). For the reasons and basis stated above, the Board finds that service connection for left ear hearing loss or tinnitus is not warranted. In reaching this decision, the Board has considered benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.