Citation Nr: 21042074 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 17-06 562 DATE: July 11, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's tinnitus began in service and has continued to the present. 2. The preponderance of the competent and credible evidence weighs against finding that the Veteran has bilateral hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 2002 and from November 2004 to January 2006. This case was previously before the Board. Most recently in January 2019, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Hearing loss and tinnitus have been interpreted as such diseases. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In the absence of proof of a present disability, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for service connection that a current disability be present is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007). 1. Tinnitus The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the United States Court of Appeals for Veterans Claims specifically held that tinnitus is a condition which is capable of lay observation. The Veteran has credibly reported that his tinnitus began in service and has continued to the present. Specifically, the Veteran reported that he first noticed the ringing in his ears while serving on active duty in 2005 after an explosion. See August 2020 VA examination report; see also April 2015 VA examination report. Because tinnitus is a condition capable of lay observation, and because the Veteran has credibly reported that his tinnitus began in service and has continued to the present, service connection for tinnitus is granted. 2. Hearing Loss The Veteran contends that his bilateral hearing loss is attributable to loud noise exposure in service. See June 2015 Notice of Disagreement (NOD). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Veteran first underwent VA examination in April 2015 to determine whether he had bilateral hearing loss for VA purposes. At that examination, the Veteran did not register audiometric testing results exhibiting hearing loss for VA purposes. Specifically, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 10 LEFT 10 15 20 20 20 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. See April 2015 VA examination report. The Veteran attended an additional VA examination in August 2020. At that examination, the Veteran did not register audiometric testing results exhibiting hearing loss for VA purposes. Specifically, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 15 15 LEFT 10 10 25 15 15 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 98 percent in the left ear. See August 2020 VA examination report. The Veteran does not have bilateral hearing loss for VA purposes. He is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran has bilateral hearing loss for VA purposes cannot be determined by mere observation alone. This requires specialized training. The Board finds that determining the etiology of the Veteran's hearing symptoms is not within the realm of knowledge of a non-expert and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether he has bilateral hearing loss for VA purposes. Therefore, following a review of all available evidence, the record does not reflect bilateral hearing loss for VA purposes. To that end, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). As such, without a current disability, the Veteran lacks the evidence necessary to substantiate his claim for service connection. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran does not currently have bilateral hearing loss for VA purposes, service connection for the condition is not warranted, and the claim is denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.