Citation Nr: 21028097 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 19-25 843 DATE: May 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was caused by noise exposure in service. 2. The preponderance of the evidence indicates the Veteran does not have a current disability of tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for bilateral tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1953 to July 1955 including service in Korea from January 1954 to February 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in February 2021 and a transcript of the hearing has been associated with the claims file. The Veteran and his daughter testified at the hearing. Service Connection 1. Entitlement to service connection for bilateral hearing loss Certain diseases, to include organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran had hearing loss within one year of service the above provision is not applicable. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service personnel records show that the Veteran served as a Marine automatic weapons and rifleman as well as a stock clerk with service in Korea after the end of major hostilities. Service treatment records include the results of a July 1955 discharge physical examination that contained only a satisfactory whisper test. The Veteran denied any ear trouble. The July 2018 VA examination shows the Veteran has a current diagnosis of bilateral sensorineural hearing loss. Thus, the question is whether the current disability is caused by service. A private audiologist provided a statement dated February 2021 and received in March 2021. She indicated she reviewed the Veteran's VA records and former Center for ENT records. She explained that as an active duty serviceman, the Veteran was exposed to loud noises without hearing protection on a consistent basis and loud noise exposure can be harmful to one's hearing over time. She concluded, "[b]ased on his history, it is likely that loud noise exposure contributed to his hearing deficit." The opinion is somewhat conclusory in that it only applies the medical principle that noise causes hearing loss without a discussion of the nature, frequency and severity of the Veteran's exposure, the onset of the disability, whether any injury occurred during service, or the effects, if any, of post-service exposures or injuries. The record also includes a July 2018 opinion from a VA examiner who concluded the Veteran's hearing loss was less likely than not "a result of hazardous noise exposures and/or direct military service." Little weight is afforded this opinion because it is based in part on inaccurate information. Specifically, the examiner noted that the Veteran's military occupational specialty (MOS) was listed as personnel and administration, which has a low probability for hazardous noise exposures. However, the Veteran and his daughter testified that the Veteran had served as an infantryman. The Veteran testified that he carried a Browning 50 caliber machine gun in Korea. They explained that they went through the process of amending the Veteran's Form DD-214 to reflect his responsibilities. A Form DD-215 received July 2019 confirms that a correction to the Form DD 214 was made to add the MOS of infantry rifleman to the Veteran's DD Form 214. Moreover the file of personnel records shows these duties. Considering the VA examiner did not consider this aspect of the Veteran's service, which would result in noise exposure, less weight is afforded his opinion. Considering greater weight is afforded the opinion of the private examiner, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral tinnitus The Veteran filed a claim for service connection for tinnitus. Certain diseases, to include organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran had tinnitus within one year of service the above provision is not applicable. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). While the Veteran submitted a claim for service connection for tinnitus, the weight of competent and credible evidence suggests the Veteran has not experienced tinnitus at any time during the period on appeal. At the time of the hearing, the Veteran's representative indicated that a lot of his questions were going to combine the two issues of hearing loss and tinnitus together, but at some point he would disconnect the two for questions, but for the most part they were going to be more generic aimed at both conditions at the same time. The representative essentially asked whether an audiologist had ever said that the Veteran's hearing loss or tinnitus had some connection to service. The Veteran's daughter explained that a VA clinician had told them that he had 100 percent hearing loss and they could not do anything more for him for the hearing loss. She suggested lack of ear protection while being an infantryman could have contributed to his hearing loss. However, neither the Veteran nor his daughter mentioned anything about tinnitus. At the time of the July 2018 VA examination, the Veteran denied a history of tinnitus symptoms or concerns. Treatment records from September 2018, when the Veteran was reporting for a hearing aid check, indicate the patient was being followed for sensorineural hearing loss, adjustment of hearing aid, and subjective tinnitus. However, subsequent audiology treatment notes and audiology treatment notes from July and August 2018 make no mention of tinnitus. Nor does the private audiologist's statement from February 2021 mention tinnitus. The Board concludes that the Veteran does not have a current diagnosis of tinnitus 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). Therefore, service connection for tinnitus must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.