Citation Nr: 21026369 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-04 270 DATE: April 30, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for stomach cramps is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability for VA purposes. 2. The Veteran’s current tinnitus is not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to April 1984. This matter comes to the Board of Veterans’ Appeals (Board) from a January 2016 rating decision which denied claims of entitlement to service connection for bilateral hearing loss, tinnitus, stomach cramps, and migraine headaches. In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran was notified in a December 2020 letter that the hearing transcript was unavailable due to an audio malfunction. The Board provided the Veteran the options of having another hearing, or having his case considered on the record, despite the Board’s inability to review his testimony in the August 2020 hearing. The Board notified the Veteran that if he did not respond with 30 days, the Board would proceed with review of his case. No response has been received. The Board is proceeding with review. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including organic diseases of the nervous system, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from an active service period. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, the Department of Veterans Affairs shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Bilateral hearing loss A hearing loss disability is defined by specific audiometric results involving puretone 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 (dB) or greater; when the auditory thresholds for at least three of these frequencies are 26 dB 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). The Board notes that the absence of in-service evidence of a hearing loss disability is not fatal to a claim for service connection where there is competent evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service. See Hensley v. Brown, 5 Vet. App. 155, 158-59 (1993). The Veteran’s service treatment records (STRs) revealed normal hearing bilaterally at his November 1980 entrance examination and February 1984 separation examination, and no threshold shift was noted. The Veteran was afforded an VA audiology examination in January 2016. Maryland CNC speech recognition scores were 100 percent in the left ear and 96 percent in the right ear. Audiometric testing revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 10 25 30 LEFT 20 10 10 25 25 The audiometric results do not show an auditory threshold of 40 dB or greater at any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz; an auditory threshold of 26 dB or greater at three of those frequencies; or speech recognition scores of 94 percent or less. See 38 C.F.R. § 3.385. 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 Board finds that the evidence does not demonstrate a hearing loss disability under 38 C.F.R. § 3.385 during the pendency of the appeal. See McKinney v. McDonald, 28 Vet. App. 15, 24-25 (2016) (stating that the criteria of 38 C.F.R. § 3.385 applies before a determination of service connection is made). See also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (the criteria in 38 C.F.R. § 3.385 is the gauge of what constitutes a hearing loss disability). For the foregoing reasons, entitlement to service connection for hearing loss must be denied. 2. Tinnitus In October 2015 the Veteran submitted a claim for service connection for tinnitus. The Veteran’s STRs do not reflect any report of tinnitus. In both his November 1980 entrance examination and February 1984 separation examination, his ears were noted to be normal. On VA examination in January 2016 he reported that he has experienced tinnitus. He indicated that he was unsure when he began to experience tinnitus, stating “a while.” The examiner opined that it was less likely as not that the Veteran’s tinnitus was caused by noise exposure during service. In explanation, the examiner noted that the Veteran had no hearing loss during service and there was no threshold shift in service. The Board notes that the evidence of record does not contain any lay assertions from the Veteran explaining how his tinnitus is related to his military service. The Veteran’s military occupational specialty (MOS) was Boatswain’s Mate, which had a low probability of acoustic trauma. There is no evidence as to whether the Veteran’s tinnitus began during active service and continued after separation from service. There is also no indication that he reported tinnitus during his service years. On careful consideration, the greater persuasive weight of the evidence is against the Veteran’s tinnitus having had onset during service and having continued from separation from service through the present. The Board denies service connection for tinnitus. REASONS FOR REMAND The Veteran claimed that his stomach cramps and migraine headaches are related to service. VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). A September 1982 medical care report documents that the Veteran had stomach cramping, including cramps in his abdomen as well multiple headaches while serving aboard the USS Dwight D. Eisenhower. Post-service, VA treatment records dated in June 2016 indicate that the Veteran has severe migraine headaches that are throbbing in nature and last for several hours, private treatment records dated in September 2013 note the Veteran’s stomach pain complaints while September 2014 treatment records document that the Veteran was admitted for an acute abdomen and that he had abdominal tenderness. Given the Veteran’s stomach issues and headaches in service and his current complaints of headaches and stomach pain, the Board finds that VA examination is warranted. McLendon, 20 Vet. App. at 86. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations in order to determine the nature and etiology of his claimed migraine headaches and stomach cramps. The examiner should review the entire record, including this REMAND. All necessary studies and tests should be conducted. 2. Following an examination of the Veteran and a review of the Veteran’s service treatment records and post-service treatment records, the examiner is asked to answer the following: Identify any current disability related to the Veteran’s claimed migraine headaches and stomach cramping. (a) Is it at least as likely as not (i.e., 50 percent or greater probability) that any migraine headaches were incurred during or is otherwise related to the Veteran’s active service? (b) Is it at least as likely as not (i.e., 50 percent or greater probability) that any stomach cramping was incurred during or is otherwise related to the Veteran’s active service? The examiner should specifically address the Veteran’s in-service complaints and any current diagnoses regarding his claimed migraine headaches and stomach cramping as discussed in the body of the remand above. 3. Thereafter, the AOJ should readjudicate the claims based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued an SSOC. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.