Citation Nr: 21021799 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-24 418 DATE: April 14, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran reports that his tinnitus began in service and has continued since that time. 2. The Veteran is not shown to have right ear hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385 during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to November 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and sensorineural hearing loss and/or tinnitus become manifest to a degree of 10 percent within one year from 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. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for tinnitus is granted. The Veteran contends that during service he was exposed to hazardous level noise in his MOS as a fireman, resulting in his current tinnitus, which has continued since service. The Veteran also testified during the July 2020 hearing on the matter that, about a year after he was discharged, he sought treatment for the ringing in his ears. Initially, the Board notes that the Veteran has been diagnosed with current tinnitus as shown on the May 2012 VA examination. Thus, the question becomes whether this condition is related to service. The Board notes that the Veteran’s service treatment records (STRs) show no complaints of or diagnoses of tinnitus during service. In this regard, the Veteran’s STRs contain his August 1968 enlistment examination, showing normal ear, nose, and throat (ENT) physical examination but they do not contain his separation examination. The Veteran’s service personnel records confirm that he served as an interior communications electrician. During his July 2020 hearing on the matter, the Veteran testified prior to his military occupational specialty (MOS) as the internal communications electrician, during his first year on the U.S.S. Isle Royale, he served as a fireman. He further stated that as a fireman assigned to the ship’s service electrician division, he had regular watches that lasted for hours at a time, over the four giant generators in the engine room, which would shrill terribly loud. Moreover, the Veteran testified that the next year he was stationed in Portland, Oregon aboard the U.S.S. Braine for approximately one year and then on the U.S.S. Lind, both of which were destroyer ships and both reserve trainers. He stated that he would take the naval reserve crews out regularly and put them through simulated combat drills and live fire exercises. During these drills, there was plenty of five-inch gunfire going on. He explained that when a five-inch gun goes off on a destroyer, you cannot get very far away from it. He stated that he has had ringing in his ears from the time that he was separated from service; though, he never thought much about it because he just thought he had to deal with it. The Board acknowledges that by virtue of his duties associated with his MOS as a fireman, he was likely exposed to hazardous level noise in service. The Veteran’s descriptions of his noise exposure are consistent with his circumstances of service and are competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection). On VA examination in January 2016, he reported his tinnitus began during service, but he could not specify a circumstance of onset. The 2016 examiner opined that Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure because the Veteran’s MOS as an electrician has a low probability for noise exposure and there was no documentation for significant threshold shifts or in-service acoustic trauma. Instead, the examiner opined that the Veteran’s tinnitus was more likely than not a symptom associated with his hearing loss. With respect to tinnitus, the Veteran is competent to state that his tinnitus began in service, because tinnitus is a condition capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) citing Caluza v. Brown, 7 Vet. App. 498, 504 (1995) (where determinative issue does not require medical expertise, lay evidence may suffice by itself). 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. Id. If it does, such testimony is sufficient to establish service connection. Id. The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance. In this matter, the Board finds the Veteran has credibly and competently testified as to the onset and continuation of his tinnitus. After resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for tinnitus is warranted. 38 C.F.R. § 3.102. 2. Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that during service he was exposed to hazardous level noise in his MOS fireman, which resulted in a current hearing loss. As mentioned, the Board acknowledges that by virtue of duties associated with his MOS as a fireman, he was likely exposed to hazardous level noise in service. The threshold question for the Board is whether the Veteran has the disability for which service connection is sought, a right ear hearing loss disability. For the purpose of applying the law administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the puretone 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. The Veteran’s STRs are silent regarding a hearing loss disability. The Board notes that his STRs contain his August 1968 enlistment examination, showing normal hearing but they do not contain his separation examination. On January 2016 VA audiology examination, audiometry showed puretone thresholds of 15, 25, 25, 30, and 25 decibels in the right ear at 500, 1000, 2000, 3000 and 4000 Hertz frequencies, respectively. Speech recognition score was 98 percent in the right ear. Post-service treatment records are silent regarding a finding of a right ear hearing loss disability. Congress specifically limits entitlement for service-connected disease or injury to cases where such have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of current disability, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The findings on the January 2016 VA examination audiometry do not meet the criteria for a right ear hearing loss disability under 38 C.F.R. § 3.385, and there is no other evidence of record showing the Veteran has, or during the pendency of the instant claim has had, such disability. While the Veteran may be competent to describe subjective symptoms such as difficulty hearing, under the governing regulations, for VA compensation purposes a hearing loss disability must meet the definition in 38 C.F.R. § 3.385, and must be shown by audiometry in accordance with 38 C.F.R. § 4.85. The evidence before the Board does not include competent evidence that the Veteran has a hearing loss disability in the right ear. He has not presented a valid claim of service connection for such disability. See Brammer, supra. The preponderance of the evidence is against this claim. Accordingly, the appeal seeking service connection for right ear hearing loss must be denied. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. The Board notes that the Veteran was diagnosed with left ear hearing loss for VA purposes during the January 2016 VA examination; however, the examiner provided a negative opinion. The rationale for the opinion was based on the fact that the Veteran’s MOS as an electrician is one of low probability of noise exposure, the fact that there was no complaint of hearing loss noted in the records and because his civilian employment is significant for noise exposure with construction and metal fabrication. However, as mentioned above, the Board acknowledges that by virtue of the Veteran’s duties associated with his MOS as a fireman, he was likely exposed to hazardous level noise in service. Regarding his post-service civilian employment, during his July 2020 hearing on the matter, the Veteran testified that he was a residential electrician and he worked for himself and by himself and did not have any significant post-service noise exposure. In light of the Veteran’s testimony and clarification of the facts surrounding his case, the Board finds an addendum opinion should be obtained upon remand. Updated treatment records should be obtained as well. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disability. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. After records development is completed, send the claims file to the January 2016 VA audiologist, if available, to obtain an addendum medical opinion as to whether the Veteran’s left ear hearing loss is possibly related to service. The entire claims file should be reviewed by the examiner. If a new examination is necessary in order to respond to the request, such should be scheduled. (Continued on the next page)   Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current left ear hearing loss disability arose during service or is otherwise related to service, to include explaining why the Veteran’s current left ear hearing loss is/is not merely a delayed response to in-service noise exposure. The examiner should concede that by virtue of the Veteran’s duties associated with his MOS as a fireman, he was likely exposed to hazardous level noise in service. A rationale for all opinions expressed should be provided, to include explaining the significance, if any, of the Veteran’s lay statements regarding his lack of post-service noise exposure. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.