Citation Nr: 21006230 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-29 503 DATE: February 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for vertigo is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss was incurred in or caused by service. 2. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s tinnitus began during service and has continued since. 3. The preponderance of the evidence is against finding that the Veteran’s vertigo was incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 5107; 38 C.F.R. §§ 3.303 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to November 1973. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was last before the Board in December 2019 and has returned to the Board for further appellate review. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a veteran has served continuously for 90 days or more during active service, and sensorineural hearing loss and tinnitus become manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss. During the July 2019 Board hearing, the Veteran testified that his hearing loss is a result of in-service noise exposure from a missile being fired near his ears while serving aboard the USS Trippe. For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). As an initial matter, the Board finds that the Veteran has a hearing loss disability pursuant to 38 C.F.R. § 3.385, as shown by an April 2013 VA examination. Thus, the question becomes whether the Veteran’s bilateral hearing loss is related to service. The Veteran’s DD Form 214 confirms the Veteran’s service aboard the USS Trippe and his military occupational specialty (MOS) as Boatswain’s Mate. In-service noise exposure is conceded. The Veteran’s service treatment records do not document complaints of or treatment for hearing loss. His November 1972 entrance examination and November 1973 separation examination both revealed hearing within normal limits. Furthermore, post-service treatment records are also absent any complaints of or treatment for hearing loss until July 2009. As a hearing loss disability was not shown in service or for many years thereafter, competent evidence linking his current hearing loss with service is required to establish service connection. In this regard, the Veteran underwent a VA audiology examination in April 2013. The examiner opined that the Veteran’s current bilateral hearing loss is less likely than not caused by or the result of in-service noise exposure. In support of her opinion, the examiner cited a study conducted by the Institute of Medicine (IOM), which found that there is no sufficient scientific basis for the existence of delayed-onset hearing loss based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss. Moreover, the examiner explained that the Veteran’s induction and separation audiograms revealed normal hearing without threshold shift. While the Veteran believes his bilateral hearing loss disability is related to service, as a lay person, he has not shown he has the specialized training sufficient to determine the degree of hearing loss or etiology of such. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). In this regard, such matters require medical testing and expertise to determine. Consequently, the Veteran’s opinion as to the onset and etiology of his bilateral hearing loss disability is not competent medical evidence. Id. The Board finds the in-service audiology examinations and April 2013 VA examiner’s opinion significantly more probative than the Veteran’s lay assertions. In sum, the Board concludes that the most probative evidence of record is against finding that the Veteran’s current hearing loss disability was incurred in or caused by service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Entitlement to service connection for tinnitus At the outset, the Board concedes the presence of a current tinnitus disability, as the Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly in this instance. See Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to attest to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus “because ringing in the ears is capable of lay observation”). Thus, the remaining question is whether the Veteran’s current tinnitus arose in or is related to service. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. If it does, such testimony is sufficient to establish service connection. Id. In this instance, the Board finds the Veteran’s reports that his tinnitus began during service and has continued since to be competent and reasonably credible. During the July 2019 Board hearing, the Veteran testified that the ringing in his ears began in service after a missile was fired in close proximity to his ears and progressed in his early 20s, after his separation from service. In April 2013, a VA examiner opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The examiner based her opinion on the absence of records showing complaints of tinnitus during service. The Board acknowledges that the VA examiner’s opinion is against the claim. However, in light of the positive and negative evidence of record, the Board finds the evidence is at least in equipoise as to whether the Veteran suffers from tinnitus that arose in service and has continued since. Accordingly, resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for vertigo, claimed to include as secondary to bilateral hearing loss The Veteran seeks service connection for vertigo, as secondary to his bilateral hearing loss. Although the Veteran initially filed service connection for vertigo as related to service, during his Board hearing he testified that it was secondary to his hearing loss. Service treatment records are negative for complaints of or treatment for vertigo. The first indication of dizziness or vertigo in the record was in January 2012 when the Veteran called the VA outpatient clinic stating that for the past two weeks he had been having dizziness. After undergoing comprehensive testing that showed no evidence of any significant vestibular hypofunction, he was ultimately diagnosed with vertigo secondary to right-sided benign paroxysmal positional vertigo. There was no suggestion in the treatment records that the condition was in any way related to military service. The Board acknowledges that a VA examination was not obtained on this issue. However, there is no competent and credible evidence indicating the condition arose in service or is related to service. Accordingly, a VA examination is not required. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Upon review of the record, the Board finds the preponderance of the evidence is against a finding of service connection for vertigo. As service connection for hearing loss has been denied, service connection for vertigo is not warranted on a secondary basis. See 38 C.F.R. § 3.310. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.