Citation Nr: 21010513 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-50 114A DATE: February 25, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus had its onset during service. 2. The Veteran does not have a current bilateral hearing loss disability to the extent recognized as a disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for bilateral hearing loss have not be met. 38 U.S.C. §§ 1101, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.03, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to January 1988. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. In July 2016 the Veteran filed a notice of disagreement (NOD) to appeal the RO’s denial. In March 2019 the Board denied the bilateral hearing loss and tinnitus claims and the Veteran appealed. Pursuant to a Joint Motion for Remand (JMR) filed by the Veteran’s representative and VA, in February 2020, the Court of Appeals for Veterans’ Claims (Court) vacated the Board’s March 2019 decision and remanded the claims to the Board for further development and readjudication in compliance with the specified directives. Those directives included that the Board address the Veteran’s request for representation by Disabled American Veterans. The Veteran subsequently appointed the VSO as his representative and the VSO filed a January 2021 appellate brief on his behalf. Consequently, the Board need not further address this aspect of the JMR. In August 2020 the Board remanded the matters to the AOJ for review of the Veteran’s claims, instructing that the agency of original jurisdiction (AOJ) obtain updated VA treatment records and readjudicate the claims. The AOJ obtained the records and readjudicated the claims in an October 2020 supplemental statement of the case (SSOC). Consequently, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 in 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 organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for tinnitus is granted. A May 2016 VA examiner diagnosed the Veteran with tinnitus. Thus, the current disability element has been established. The Veteran stated that he was exposed to loud noise in service and, as noted in the January 2021 appellate brief, this is consistent with the Veteran’s military occupational specialty as an air traffic control technician. The in-service injury element has therefore been met. The dispositive issue is whether there is a nexus between the Veteran’s in-service noise exposure and his tinnitus. As noted by the parties to the JMR, the Veteran indicated during the May 2016 VA examination that his tinnitus had its onset in 1985, during service. He has also stated that his tinnitus has been continuous since that time. The Veteran’s statement in this regard are competent and credible. While the May 2016 VA examiner opined that it is less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure, the rationale was based on normal hearing noted to be over thirty years after service and the absence of complaints, treatment, or diagnosis of tinnitus in service. However, this reasoning is flawed because it did not consider the competent and credible lay statements of the Veteran. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Although the Board could remand the claim for another medical opinion, there is sufficient evidence to decide the claim, and a remand could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The evidence is sufficient to decide the claim. The above reflects that the evidence is at least as evenly balanced that as to whether the Veteran’s current tinnitus began in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). 2. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that he has bilateral hearing loss caused by noise exposure during service. A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000 or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A review of the evidence of record does not show the Veteran has a current hearing loss disability for VA purposes in either ear. On the May 2016 VA examination, the Veteran’s audiometric testing results show normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 15 15 10 LEFT 10 10 15 20 15 Additionally, the Maryland CNC speech recognition scores were 100 percent in the right ear and 98 percent in the left ear. The audiometric testing results did not show auditory threshold of 40 decibels or higher at any of the above-referenced frequencies or auditory thresholds of 26 decibels or greater for at least three of the above-referenced frequencies in either ear. Additionally, the reported Maryland CNC Test scores of 100 percent for the right ear and 98 percent for the left ear do not meet the VA definition of a hearing loss disability. Hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). Although the Veteran contended and his representative argued that service connection is warranted based on his statements and medical literature, the pertinent regulation requires specific audiometric or speech recognition scores in order to meet the current disability requirement for hearing loss. There is no evidence that the Veteran or representative have the expertise required to render such a determination and they have not pointed to any audiometric or speech recognition scores that show impaired hearing pursuant to 38 C.F.R. § 3.385. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Although the current disability requirement can in some circumstances be met with evidence of symptoms showing impairment in earning capacity, Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (a diagnosis is not always required to meet the current disability requirement and pain alone can constitute disability if it causes impairment in earning capacity), given the specific requirements of 38 C.F.R. § 3.385, this principle is not for application here. For the foregoing reasons, the preponderance of the evidence is against a current disability, which is required to establish service connection. The benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Henderson, 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.