Citation Nr: 21040948 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-29 329 DATE: July 7, 2021 ORDER Entitlement to service connection for a stroke, to include as due to exposure to Agent Orange is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. The evidence does not establish that the Veteran had a stroke, or any residuals thereof. 2. The preponderance of the evidence shows the Veteran's tinnitus is etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a stroke, to include as due to exposure to Agent Orange have not been met. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to June 1969 to include service in the Republic of Vietnam. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a). 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 (Fed. Cir. 2004). 1. Entitlement to service connection for a stroke, to include as due to exposure to Agent Orange The Veteran asserts that service connection is warranted for a stroke as a result of presumed exposure to Agent Orange during service. A review of the Veteran's service treatment records (STRs) and VA post-service treatment records does not show a diagnosis of a stroke. VA treatment records on file speak to the Veteran's risk of stroke, but do not note a prior history of a stroke. The only evidence of a past stroke or any current residuals thereof consist of the Veteran's statements in connection with his claim. He does not contend that a medical professional told him he had a stroke. Consequently, the question is whether the Veteran, a layperson, is competent to diagnose himself as having had a stroke with current residuals. Here, the Board finds he is not competent to diagnose himself with a stroke or to attribute any current symptoms to a stroke. The presence of a stroke typically involves symptoms common to other disorders, and typically requires medical attention and evaluation. Here, there is no medical documentation of a stroke, and the only treatment records on file are silent for any reference of a history of a stroke. The Board finds that the Veteran himself is not competent to diagnose himself as having had a stroke. Consequently, the Board concludes that his lay statements do not establish the presence of a stroke or residuals thereof. In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at any time during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record does not demonstrate that the Veteran has a current diagnosed stroke disability, nor has he ever been diagnosed with a stroke according to the available treatment records. The threshold element of a service connection claim (a current disability) has not been met; therefore, service connection for a stroke disability, to include as due to exposure to Agent Orange must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board notes that the Veteran has not been afforded a VA examination in this case for his claimed stroke. The Board finds that such an examination or opinion is not necessary, as there is no competent or indeed credible evidence of persistent or recurring symptoms of a current disability associated with the purported stroke. Accordingly, the preponderance of the evidence is against the claim for service connection for a stroke, to include as secondary to exposure to Agent Orange, the benefit of the doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to service connection for tinnitus The Veteran contends that service connection is warranted for his tinnitus disability. Specifically, the Veteran states that he was exposed to acoustic trauma in service while in Vietnam using Howitzer weapons and flying in Chinook helicopters. According to the Veteran's military service records, his military occupational specialty was field artillery cannoneer and exposure to noise is conceded by VA. At a January 2017 VA hearing loss and tinnitus examination, the examiner noted that the Veteran reported onset in the 1980's. The examiner opined that it was less likely than not related to service because there was no significant threshold shifts between entrance and separation from active service and onset was several years after service. The Veteran's June 2018 Form 9, Substantive Appeal reflects that ringing/buzzing initially began in service while he was performing his duties as a field artillery cannoneer. After a review of all the evidence, the Board finds that the criteria for entitlement to service connection for tinnitus have been met. The record shows that the Veteran was exposed to acoustic trauma in service while performing his duties as a field artillery cannoneer and he has a current diagnosis of tinnitus. Given the inherently subjective nature of tinnitus, the Veteran is uniquely situated to competently identify and report on the onset and duration of ringing in the ears. A lay person is competent to provide an opinion on the presence of recurrent ringing in the ears since service, as the symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran testified that he experienced ringing in his ears in service and that he experienced such ringing ever since service and finding that the veteran was competent to so testify because ringing in the ears was capable of lay observation). Considering the Veteran's credible assertions of continuous symptomatology of tinnitus since service, the Board finds that service connection for tinnitus is warranted. Reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND Entitlement to service connection for hearing loss is remanded. The Veteran contends that service connection is warranted for a hearing loss disability. As noted above, a review of the Veteran's record shows that his military occupational specialty was a field artillery cannoneer and acoustic trauma has been conceded by VA. At a January 2017 VA hearing loss and tinnitus examination, the examiner stated that the Veteran's hearing loss pre-existed service. The examiner opined that it was less likely than not related to service because there was no significant threshold shifts between entrance and separation from active service. Unfortunately, the Board finds the VA opinion to be inadequate as there is no evidence the Veteran had hearing loss that pre-existed service. The auditory threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory 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. It is not necessary to meet these criteria for a hearing loss disability during service to warrant service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The record shows that the Veteran has a current bilateral hearing loss disability for VA purposes. Thus, the element of a current disability has been satisfied. Additionally, as noted above, based on the Veteran's military occupational specialty, in-service acoustic trauma is conceded. The Board finds that the Veteran had elevated hearing thresholds in his right ear at 6000 Hertz and slightly elevated in his left ear at 500 Hertz at entrance to service, but they did not meet the levels needed to satisfy the definition of hearing loss disability for VA purposes. 38 C.F.R. §§ 3.385, 4.85. Moreover, hearing loss was not noted on the entrance examination as a disqualifying defect. As such, the Board will proceed with the notion that the Veteran had normal hearing at service entrance. Post-service treatment records show complaints of hearing loss and tinnitus. Additionally, the January 2017 VA examiner noted on his report that the Veteran's hearing loss pre-existed service. As noted above, the Board has determined that the Veteran was sound on entry. Due to the inadequacies of the VA examination, the Board finds that a remand is necessary for a new VA hearing loss examination to determine the etiology of the Veteran's hearing loss. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his hearing loss. After a review of the record including this Remand and the Veteran's lay statements, the examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any bilateral hearing loss disability had its clinical onset during the Veteran's active duty service or is otherwise etiologically related to his active service, to include conceded in-service noise exposure. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Mitchell, 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.