Citation Nr: 21073584 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 20-17 427 DATE: December 9, 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 preponderance of the evidence is against finding that the Veteran has had a diagnosis of hearing loss for VA purposes at any time during or approximate to the pendency of the claim. 2. The evidence is at least in equipoise as to whether the Veteran's tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1959 to December 1964. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board Hearing. The Board observes that additional VA treatment records were received following the last adjudication by the RO in the March 2020 statement of the case (SOC). The Board has reviewed these records and finds that they are not pertinent to the issue of service connection for bilateral hearing loss. Therefore, a waiver is not necessary, and the Board will proceed with adjudication of the issues on appeal. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases including sensorineural hearing loss and tinnitus will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). The requirement that a current disability be present is satisfied "when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 1. Entitlement to service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 hertz 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 Veteran contends that his hearing loss began on active duty and continued since that time. See August 2021 Board Hearing Transcript. In this case, the record does not reflect a current diagnosis of hearing loss for VA purposes at any point during the pendency of the appeal or immediately prior to the filing of the claim. The Veteran's hearing was evaluated at an August 2018 VA audiological examination; however, this audiological examination does not reflect a current diagnosis of hearing loss for VA purposes. See Brammer v. Derwinski, 3 Vet. App. 223; McClain v. Nicholson, 21 Vet. App. at 321; Romanowsky v. Shinseki, 26 Vet. App. at 294. During the August 2018 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 20 15 35 LEFT 20 35 25 20 30 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. In sum, based on the evidence just described, the Veteran's hearing acuity is not considered a disability for VA purposes. See 38 C.F.R. § 3.385. The Board acknowledges the Veteran's belief that he has a current diagnosis of hearing loss and his complaint that he often cannot understand people. However, he is not competent to provide a diagnosis in this case as a hearing loss diagnosis requires specific audiometric testing performed by an audiologist and is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Board affords more probative weight to the competent medical evidence of record. As such, without evidence of a current disability, the preponderance of the evidence is against the claim of service connection for bilateral hearing loss and the claim must be denied. The claim is being denied because there is no current disability; thus, any findings related to a nexus or etiology are moot. See Brammer, 3 Vet. App. at 225 (finding service connection presupposes a current diagnosis of the condition claimed). Consideration has been given to the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, it is not applicable. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus began on active duty as a result of acoustic trauma and has continued since that time. See August 2021 Board hearing. In terms of a current disability, the Board notes that for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). During his August 2018 VA tinnitus examination and his August 2021 Board hearing, the Veteran reported that he currently experiences ringing in his ears. As just noted, the Veteran is competent to report ringing in his ears, as this symptom is observable by a lay person. The Board has no reason to doubt his credibility; therefore, the current disability element of the claim is established. Regarding an in-service incurrence, the Veteran reports exposure to hazardous noise while on active duty. He states that he served as a medic assigned to the crash response team and noted that he worked on the flight line, responding to emergencies, and standing by while B-47 jets landed. See June 2018 statement and August 2021 Board Hearing transcript. The Veteran's DD Form 214 shows his military occupational specialty (MOS) as a medical service specialist and his personnel records reflect that his duties included driving an ambulance and administering first aid at the scene of accidents. The Veteran is competent to report exposure to loud noise and his personnel records support his statement regarding the circumstances of his noise exposure. As such, the Board concedes in-service noise exposure. Finally, the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to service. In an October 2018 opinion, Dr. Y. found a nexus between the Veteran's tinnitus and his time spent serving on active duty in the Air Force. He reasoned that the Veteran worked as an emergency medical technician (EMT) and was assigned to the flight line crash crew where he was in contact with sirens and loud jet engines. The Board affords Dr. Y.'s opinion significant probative weight because he provided an adequate rationale and has been a physician to the Veteran for over ten years and was thus well informed of the circumstances of his military service. In sum, because all three service-connection elements are satisfied, service connection for tinnitus is granted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.