Citation Nr: 21074553 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-17 403 DATE: December 15, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his tinnitus was caused by or incurred in service. 2. The Veteran does not have bilateral hearing loss as defined by VA regulations. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. 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, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1995 until December 1999. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2017 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran testified before the undersigned in a June 2021 hearing; a transcript is associated with the claims file. 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden 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). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be awarded on secondary basis for a disability which is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus related to exposure to loud noises while in service. The Board finds that the evidence is in relative equipoise, and therefore that service connection for tinnitus is warranted. The Veteran testified at the June 2021 hearing that he currently suffers from ringing in the ears; post-service treatment records also indicate that he complains of tinnitus. Therefore, the first Shedden element is satisfied. The Veteran additionally testified that he was exposed to loud noises in service. Specifically, he testified that he was exposed to flight line aircraft engine noise and vehicle repair equipment such as air compressors and high revving diesel engines. The Veteran's MOS in service was that of a general-purpose vehicle maintenance journeyman. The second Shedden element is thus satisfied. The remaining question is whether the two are related. At a May 2017 VA examination, the Veteran reported ringing in the ears with an onset in 2000. However, the VA examiner opined that the Veteran's tinnitus was less likely than not associated with military noise as the "separation audio examination evidence no hearing loss bilaterally . . . [and] no shift (decrease) in threshold measures bilaterally." At the June 2021 hearing, the Veteran reiterated that his tinnitus onset shortly after separating from service. Specifically, upon clarification from the undersigned, the Veteran credibly testified that he remembered his tinnitus starting about 6 months after separation and that it continued and worsened ever since. The Veteran has provided competent and credible reports of the onset of his tinnitus shortly after separation from active service due to his conceded in-service noise exposure; importantly, he testified that his tinnitus has continued to the present. Moreover, tinnitus-or, ringing in the ears-is the type of disability that may be established on the basis of lay evidence as it is subjective in nature. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board acknowledges the negative nexus opinion of the May 2017 VA examiner. However, the Board does not afford it any probative weight as it did not consider the Veteran's lay statements regarding continuity, nor did it consider the Veteran's credible statement that his tinnitus onset shortly after separation. Furthermore, the VA examiner's rationale seems to be based entirely on the lack of a diagnosis for any bilateral hearing loss. Accordingly, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's tinnitus is etiologically related to his period of active service. As such, and resolving all reasonable doubt in the Veteran's favor, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he says is related to the military noise exposure described above. The May 2017 VA audiological examination shows auditory thresholds as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 10 10 0 0 20 Right 10 10 5 5 10 Speech discrimination scores were 100 percent in both the left and right ears. A November 2017 private audiological examination was provided. The auditory thresholds were as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 15 10 5 10 30 Right 10 15 10 10 30 Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. As shown above, neither the May 2017 nor November 2017 examinations showed hearing loss for VA purposes in either ear based upon puretone thresholds and the speech discrimination scores. The Board notes, as it did in the section prior, that the Veteran was exposed to hazardous military noise. The Board additionally highlights that the Veteran is service-connected for GERD and acknowledges his June 2021 argument that medications he took for it were "auditory toxins." However, even given the satisfaction of the second Shedden and Wallin elements here, in the absence of proof of a present disability, there can be no valid claim for service connection. Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). The preponderance of the evidence shows that the Veteran is not diagnosed with bilateral hearing loss at any point during the appellate period or close in time to the appeal period. The Board notes that the Veteran is competent to report in-service noise exposure. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of the record shows no diagnosis of bilateral hearing loss, aside from the Veteran's lay statements and testimony at his June 2021 hearing. Bilateral hearing loss disability for VA purposes is not a simple medical condition capable of lay observation or diagnosis, and the Veteran is not shown to be qualified through specialized education, training, or experience to diagnose a hearing loss disability. In any event, the Board gives more probative weight to the May 2017 and November 2017 examinations as they are based on the VA specific audiological criteria. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the absence of any persuasive and probative evidence that the Veteran has bilateral hearing loss, service connection is not warranted, and the claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.