Citation Nr: 21013005 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 16-12 883 DATE: March 8, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran does not have a current right ear hearing loss disability. 2. The Veteran’s left ear hearing loss is etiologically related to service. 3. The Veteran’s tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for service connection for left ear hearing loss have been met. See 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for service connection for tinnitus have been met. See 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to April 1974. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2012 rating decision which denied service connection for bilateral hearing loss and tinnitus. In a January 2021 letter, the Board notified the Veteran that a complete transcript of the February 2019 Board hearing could not be produced due to audio malfunctions. The Veteran was given 30 days to request a new hearing and, if a response was not received, the Board would assume that the Veteran did not want a new hearing. No response was received from the Veteran. Hearing Loss Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The standard of proof is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A hearing loss disability is defined by specific audiometric results involving pure tone frequency thresholds and speech discrimination criteria. See 38 C.F.R. § 3.385. A veteran’s hearing loss will be considered a disability only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. See id. Congress specifically limited entitlement to service connection to cases where there is a current disability: “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). An October 1970 entrance audiogram, using the ISO-ANSI standard, showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 0 5 0 LEFT 10 10 10 10 5 An April 1974 separation audiogram, using the ISO-ANSI standard, showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 0 0 LEFT 10 5 0 0 0 The Veteran’s DD 214 identified his military occupational specialty as aircraft fuel systems mechanic. A September 2012 VA examination showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 15 10 20 LEFT 5 15 10 15 70 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The examiner opined that the Veteran’s bilateral hearing loss is less likely than not caused by service because the audiometric results from the entrance and separation examinations did not show significant in-service threshold changes. A September 2013 private audiogram showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 15 Not recorded 20 LEFT 5 10 10 25 85 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear, but it is not clear if the Maryland CNC test was used. The private audiologist opined that the Veteran was exposed to flight line noise during service and that this exposure would likely cause damage to the hearing nerve, which would cause hearing loss. The private audiologist opined that it is most likely that the Veteran’s bilateral hearing loss was caused by service. The examiner indicated that she had reviewed the Veteran’s service treatment records prior to making her conclusions. In written pleadings, to include a July 2012 VA Form 21-4138, the Veteran asserts that service connection for bilateral hearing loss is warranted due to noise exposure while working as a flight line aircraft mechanic. In an April 2016 VA Form 646, the Veteran’s representative asserts that the Veteran has left ear hearing loss for VA purposes. The representative also asserts that the private audiologist provided a positive medical opinion that bilateral hearing loss began in service and was the result of noise exposure during service. The representative asserts that the agency of jurisdiction found that the Veteran’s hearing improved and then got worse, which is inconsistent with the National Institute of Health stating that progressive hearing loss does not improve. The Veteran also submitted a medical article regarding the acceleration of age-related hearing loss by early noise exposure. As to the Veteran’s right ear hearing loss, the Board finds that service connection is not warranted because the right ear hearing loss does not satisfy the regulatory criteria for a hearing loss disability. See 38 C.F.R. § 3.385. The Board notes that the service and post-service audiometric results do not show an auditory threshold of 40 decibels or greater at any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz; or an auditory threshold of 26 decibels or greater at three of those frequencies. See 38 C.F.R. § 3.385. While it is not clear if the speech recognition score at the September 2013 private audiogram was based on the Maryland CNC test, the Board notes that the post-service speech recognition scores exceed 94 percent. See id. As mentioned above, “[i]n the absence of proof of a present disability, there can be no valid claim.” Brammer, 3 Vet. App. at 225. The Veteran thus has not shown a right ear hearing loss disability. The Board notes that there is a positive September 2013 private nexus opinion. This opinion, however, does not pertain to the specific criteria necessary to establish a hearing loss disability under 38 C.F.R. § 3.385. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (stating that the criteria in 38 C.F.R. § 3.385 is the gauge of what constitutes a hearing loss disability). The Board has also considered the Veteran’s lay statements and assertions. While the Veteran is competent to report lay observations about his hearing, the question of whether the Veteran has a hearing loss disability does not lie within the range of common experience or common knowledge but requires special experience or special knowledge in the field of audiology, including audiometric testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As noted above, the evidence does not demonstrate a right ear hearing loss disability under 38 C.F.R. § 3.385. Because the preponderance of the evidence is against the Veteran’s claim for service connection, there is no reasonable doubt to be resolved, and the claim for service connection for right ear hearing loss must be denied. As to the Veteran’s left ear hearing loss, the Board finds that service connection is warranted. The Board notes that the post-service audiometric results show a current left ear hearing loss disability because these results show an auditory threshold of 40 decibels or greater at 4000 Hertz. Moreover, the Board notes that the Veteran’s DD 214 supports the Veteran’s lay statements that he was exposed to noise during service. The Boards notes that the evidence of record is conflicting on whether the Veteran’s current left ear hearing loss disability is related to service. The VA examiner’s opinion is inadequate because the examiner considered only in-service threshold shifts and did not consider the Veteran’s lay statements. See 38 C.F.R. § 3.303(d) (stating that “[s]ervice 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.”). In contrast, the private audiologist considered the Veteran’s lay statements and opined that the Veteran’s noise exposure during service would result in his current left ear hearing loss. This conclusion is consistent with the Veteran’s lay statements of worsening left ear hearing loss after service. Accordingly, in resolving the conflicting evidence, and in giving the Veteran the benefit of the doubt, the Board accords probative weight to the private audiologist’s opinion and the Veteran’s lay statements that the current left ear hearing loss disability is related to service. Because the preponderance of the evidence supports the Veteran’s claim for service connection, the claim for service connection for left ear hearing loss is granted. Tinnitus Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. See Shedden, 381 F.3d at 1167. The Veteran’s DD 214 identified his military occupational specialty as aircraft fuel systems mechanic. At the September 2012 VA examination, the Veteran could not recall the exact onset of tinnitus, but believed that it was some time after service. The VA examiner opined that the Veteran’s tinnitus is a result of moderately-severe high frequency hearing loss in the left ear, of which etiology is unknown, and likely not the result of military acoustic trauma. The September 2013 private audiologist opined that the Veteran was exposed to flight line noise during service and that this exposure would likely cause damage to the hearing nerve, which could possibly cause tinnitus. In written pleadings, to include a July 2012 VA Form 21-4138, the Veteran asserts that service connection for tinnitus is warranted due to noise exposure while working as a flight line aircraft mechanic. The Veteran alleges that he just learned to tolerate the ringing. The Board finds that service connection for tinnitus is warranted. The Veteran reports experiencing tinnitus during the pendency of this appeal. He is competent to report lay observations of tinnitus, and this lay evidence shows a current disability. See Jandreau, 492 F.3d at 1377. An in-service injury is established by the Veteran’s DD 214 showing a military occupational specialty associated with probable exposure to loud noises. The Board also finds that the evidence of record shows that the Veteran’s tinnitus is related to service. The VA examiner opined that the Veteran’s tinnitus is a result of moderately-severe high frequency hearing loss in the left ear. While the VA examiner opined that this left ear hearing loss is not related to service, the Board, in the prior section, accorded probative weight to the private audiologist’s opinion and the Veteran’s lay statements that the current left ear hearing loss disability is related to service. Because the Veteran’s current left ear hearing loss disability is related to service, the VA examiner’s opinion provides the nexus linking tinnitus to service. This conclusion is consistent with the Veteran’s lay statements and the private audiologist’s opinion. Because the preponderance of the evidence supports the Veteran’s claim for service connection, the claim for service connection for tinnitus is granted. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, 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.