Citation Nr: 21022820 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-53 086 DATE: April 19, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss for VA purposes at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record weighs in favor of finding the Veteran’s tinnitus is related to in-service acoustic trauma and noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 and 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, and 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from March 1999 to August 2003. This case is before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a December 2020 hearing. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). 1. Right ear hearing loss. The Veteran claims that he has right ear hearing loss as a result of conceded in-service acoustic trauma and noise exposure. The Veteran has been assigned a non-compensable rating for his left ear hearing loss (3/02/2021 Rating Decision - Codesheet). In a claim of service connection for impaired hearing, demonstration of the first Shedden element, i.e., the existence of a current disability, is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels (dB) or greater; the auditory thresholds for at least three of these frequencies are 26 dB or greater; and/or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 dB and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes (i.e., 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was afforded a November 2016 VA examination. At that time, pure tone thresholds, in decibels for the right ear, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 15 15 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. Although sensorineural hearing loss was noted, the examiner indicated there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency. More recently, the Veteran was afforded a February 2021 VA examination. At that time, pure tone thresholds, in decibels for the right ear, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 25 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. The February 2021 examiner diagnosed the Veteran’s right ear with normal hearing. The Board notes the Veteran’s auditory threshold at 3000 Hertz is 25 dB, exceeding the threshold for normal hearing, between 0 and 20 dB, showing some degree of hearing loss pursuant to Hensley. While some degree of hearing loss is shown, the February 2021 examination does not reflect right ear hearing status that may be considered a disability under 38 C.F.R. § 3.385. The Veteran’s auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is not 40 decibels (dB) or greater; the auditory thresholds for at least three of these frequencies is not 26 dB or greater; and his right ear speech recognition score using the Maryland CNC Test is not less than 94 percent. Because post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA purposes are not of record, the first element for service connection, the existence of a current disability, has not been met. As a matter of law the Veteran’s claim must be denied. 2. Tinnitus The Veteran contends he has tinnitus, related to in-service acoustic trauma and noise exposure that has been conceded in this case (12/16/2020 Hearing Transcript, pg. 2). He states that he has had constant ringing in his ears due to in-service parking and launching aircraft (1/31/2017 NOD). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Organic disease of the nervous system has been interpreted to include tinnitus. See VA Under Secretary for Health Memorandum (October 1995). See also 67 Fed. Reg. 59033 -01 (Sept. 19, 2002). A December 2020 letter from a private physician has confirmed the Veteran’s complaint of tinnitus, as does a February 2021 VA examination for hearing loss and tinnitus (12/22/2020 Medical Treatment Record - Non-Government Facility; 02/18/2021 C&P Exam). Finding the Veteran has a current disability, the question before the board is whether the disability began during active service or is related to conceded in-service acoustic noise exposure. The Board has considered the November 2016 examiner’s indication that the Veteran did not complain of tinnitus during the examination. The Board finds the November 2016 tinnitus examination inadequate. The examiner did not address the Veteran’s complaints of tinnitus, or address in service acoustic exposure as it may relate to tinnitus. Finding the November 2016 examination inadequate, it is assigned no probative weight. While the Veteran did not complain of tinnitus during active service, he testified during his hearing that his tinnitus became problematic after service, and was noticed when he was engaging in quiet activities, specifically recalling it when taking classes within a year or two of his active service. The Board finds the Veteran’s lay statements to be competent and credible, and in at least equipoise that his tinnitus, an organic disease of the nervous system manifest to a compensable degree within one year of his service and therefore may be presumed to have been incurred in service, warranting service connection. Medical evidence of record provides further support of a nexus between the Veteran’s current disability and his active service. The December 2020 letter from a private physician opined it is more than 50 percent likely the Veteran’s tinnitus is military service related (12/22/2020 Medical Treatment Record - Non-Government Facility). A February 2021 VA examiner confirmed the Veteran’s constant current tinnitus, and although a negative nexus opinion was provided as to direct service connection for tinnitus, in the remarks section of the exam, the practitioner discussed the Veteran’s left ear hearing loss, concluding the threshold shift and hazardous noise exposure provides a nexus to relate current tinnitus to military noise exposure (2/18/2021 C&P Exam, pg. 10). The examiner provided a positive nexus opinion for secondary service connection, stating tinnitus is at least as likely as not proximately due to hearing loss in the left ear because tinnitus is a known symptom associated with hearing loss. People who have a unilateral hearing loss may also experience tinnitus (03/01/2021 C&P Exam, pg. 2). Thus, the opinion can be construed as a finding that the tinnitus is proximately due to the service-connected hearing loss. (Continued on the next page)   In light of the foregoing, the Board finds the evidence of record to at least be in equipoise as to whether the Veteran’s current tinnitus arose in or is related to his active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted, and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.