Citation Nr: 21023688 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-22 613A DATE: April 21, 2021 ORDER Service connection for right ear hearing loss is denied. REMANDED Service connection for left ear hearing loss. Service connection for tinnitus. FINDINGS OF FACT 1. The Veteran served on active duty from March 1981 to March 1990. He had additional subsequent service in the National Guard. 2. Right ear hearing loss for VA purposes has not been shown. CONCLUSION OF LAW Right ear hearing loss was not incurred during service. 38 U.S.C. §§ 1131, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In January 2020, the Board denied the appeals. The Veteran appealed to the Veterans Claims Court. In September 2020, the Court clerk granted a Joint Motion for Remand (JMR) which vacated the Board decision and remanded the matter for action in compliance with the JMR. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition to the laws and regulations outlined above, service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the 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. 38 C.F.R. § 3.385. A review of the evidence reflects that the Veteran does not have hearing loss disability for VA purposes. Notably, a May 2015 VA examination report recorded the following testing results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 25 25 35 Speech recognition score using the Maryland CNC test for the right ear was 98 percent. There are no other medical records showing audiogram results which meet the criteria for hearing loss pursuant to 38 C.F.R. § 3.385. Therefore, right ear hearing loss for VA purposes is not currently shown. As such, the first element of service connection – a current diagnosis – has not been met with respect to the right ear. Without a current diagnosis, there is no basis on which to grant service connection for right ear hearing loss. The Board has considered the Veteran’s lay statements that he has right ear hearing loss related to noise exposure during service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the diagnosis or etiology of right ear hearing loss for VA purposes due to the medical complexity of the matter involved. Such competent evidence has been provided by the medical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal for the issue of entitlement to service connection for right ear hearing loss is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND As to hearing loss, the May 2015 VA examination revealed left ear hearing loss for VA purposes; however, the examiner concluded that the Veteran’s left ear hearing loss disability was not caused by or a result of noise exposure during service. The examiner’s rationale was based in part on an Institute of Medicine report. As noted in the JMR, the Court has stated that when an opinion relies on the 2005 Institute of Medicine (IOM) report entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus (as is the case here), the Board must assess the underlying medical text evidence when it may affect the probative value and adequacy of the medical opinion. McCray v. Wilkie, 31 Vet. App. 243, 249 (2019). This IOM report states there was not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure, and that definitive studies to address this issue have not been performed. Id. Therefore, the May 2015 VA examiner relied upon an inconclusive study to give an opinion regarding etiology. In addition, while the May 2015 VA examiner cited to the lack of a threshold shift in audiological testing when comparing the December 1980 entrance examination and the March 1990 exit examination, the examiner did not address the multiple audiological evaluations conducted during the Veteran’s National Guard service in October 2001 (noting some hearing loss in the left ear at 4000 Hz), July 2002, July 2004, July 2005, and July 2006, or the enlistment examination conducted for enlistment in the National Guard in December 1996 (also noting some hearing loss in the left ear). There is no other opinion of record that addresses the etiology of the Veteran’s left ear hearing loss disability. Based on the JMR, an additional opinion should be obtained on remand that addresses all medical evidence of record. As to tinnitus, the JMR noted that the issue of entitlement to service connection for tinnitus was inextricably intertwined with the hearing loss issue. Therefore, a remand of the tinnitus claim is also required. The matters are REMANDED for the following actions: Direct the claims file, to include a copy of this remand, to a clinician in order to obtain an addendum medical opinion. The clinician is asked to review the claims file and provide the following opinions: a) Regardless of the lack of left ear hearing loss shown at service separation, is left ear hearing loss at least as likely as not (50% probability or greater) etiologically related to in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively lose his hearing over the years)? b) Regardless of the lack of tinnitus shown at service separation, is tinnitus at least as likely as not (50% probability or greater) etiologically related to in-service noise exposure (i.e., did in-service noise exposure cause the Veteran to progressively develop ringing in his ears over the years)? The clinician is asked to discuss the Veteran’s in-service noise exposure, post-service recreational noise exposure, and Reserve and National Guard STRs showing audio testing. A discussion of delayed-onset hearing loss would also be helpful to the Board. A thorough rationale must be provided for all opinions expressed. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.