Citation Nr: 21040353 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-33 744 DATE: July 3, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left ear hearing loss began during active service. 2. At no time prior to the filing of the claim, or during the pendency of the claim, does the Veteran have a current right ear hearing loss disability for VA purposes. 3. The preponderance of the evidence is against finding that tinnitus began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2019). 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2019). 3. The criteria for service connection for tinnitus are not met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to January 1991. Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. 1110; 38 C.F.R. 3.303(a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Entitlement to service connection for left ear hearing loss. The Veteran contends that his hearing loss is the result of his active service specifically regarding his MOS as a combat medic. Service treatment records do not contain the Veteran's entrance hearing examination results. Audiograms dated December 1989 and November 1990 indicate hearing loss but does not rise to the level needed for VA purposes. In September 2016, the Veteran attended a VA Hearing Loss and Tinnitus examination. In pertinent part, the examiner did not provide an opinion but stated: No entrance exam was present in veteran's STRs for review and comparison. As such, it is unable to be determined without resorting to speculation, if he had pre-existing hearing loss prior to his entrance into the military and whether or not it was aggravated beyond normal progression during his service. Exit exam reveals a loss in the HF. Should the evidence, namely enlistment audiogram, become available for review in the future or should it be determined that evidence was inadvertently overlooked, I will gladly review and make a determination at that time. Should efforts to locate this information be exhausted and it be determined that an entrance audiogram is not available then veteran should be given the benefit of the doubt in reference to his claim and be granted SCD rating for hearing loss in the left ear. At this current time it is not in this provider's opinion that service connection rating be granted for hearing loss in the left ear due to an absence of evidence to confirm. The remaining evidence of record is silent for any opinion regarding the Veteran's left ear hearing loss etiology. Nevertheless, the Board notes that the September 2016 examiner indicated that if the Veteran's entrance audiogram was found not to be available, benefit of the doubt should be given to the Veteran and service connection should be granted. Indeed, to date, the Veteran's entrance audiogram has not been provided by either the Veteran or normal VA service treatment record channels. Accordingly, the Board finds that benefit of the doubt should be given to the Veteran and service connection should be granted for left ear hearing loss. Entitlement to service connection for right ear hearing loss The Veteran attended a VA Hearing Loss and Tinnitus examination in September 2016. In pertinent part, normal hearing thresholds were noted for his right ear. The remaining evidence of record is silent for any diagnosis of right ear hearing loss for VA purposes. Although the Veteran is competent to report observable symptoms such as difficulty hearing, the medical evidence indicates that such does not rise to the level of a disability, per VA standards. Accordingly, as the preponderance of the evidence is against a finding that the Veteran has a current diagnosis, the claim must be denied. See 38 C.F.R. § 3.303; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to service connection for tinnitus The Veteran contends that his current tinnitus is the result of his active service. Specifically, he contends exposure due to his job as combat medic. Based on the following evidence of record, the Board finds that service connection is not warranted for tinnitus. STRs are silent for any complaints, treatment, or diagnosis of tinnitus. In September 2016, the Veteran attended a VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) examination. The Veteran reported recurrent tinnitus that started "about 1year ago" described as sounding like a "humming perception". The examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure with a rationale stating "Veteran reports the onset of this perception was approximately 1 year ago, 25 years post-separation from the military. No evidence in his STRs indicating and treatment or complaint of the claimed condition. No evidence of threshold shifts based on lack of entrance examination in records." In this case, the first indication of tinnitus occurred over 25 years after the Veteran left service. This suggests that there may be no nexus with service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). The Board finds the September 2016 opinion the most probative of record because it was based on a more complete and accurate medical history and provided an explanation that contained clear conclusions and supporting data. Further, while the Board finds that the Veteran is competent to report and note his symptoms of tinnitus, the evidence of record fails to establish that his tinnitus is the product of his active service. REMANDED Entitlement to service connection for a back condition is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. In May 2021, the Veteran attended a Board hearing along with his representative. During this hearing, the Judge asked, "has there been a C&P exam done on the back", the Veteran's representative indicated that the Veteran attended a VA Back examination in 2017. The record does not reflect a copy of this examination nor a formal indication as to whether it actually occurred. Accordingly, the issue is remanded for either a copy of the examination or confirmation that it never occurred. The matter is REMANDED for the following action: Verify that the Veteran attended a VA Back examination in 2017. If verified, obtain a copy for the Veteran's claim file. If his attendance cannot be verified, a formal finding should be associated with his claims file. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.