Citation Nr: 22015083 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-21 099 DATE: March 16, 2022 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran does not have a current bilateral hearing loss disability for VA compensation purposes. 2. The Veteran currently has tinnitus. 3. The Veteran's tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from May 1993 to March 1997. The Veteran appeared at a virtual hearing in August 2021. Unfortunately, the transcript could not be produced. In a December 2021 letter, the Board noted that with regard to the August 2021 hearing, they regretted to advise the Veteran that they were unable to produce a complete transcript of the proceeding due to the audio malfunctions heard throughout the testimony in the Digital Audio Recording System (DARS). The Board requested that the Veteran review the available Hearing Options and let them know if he desired another hearing. The Board indicated that if the Veteran did not respond within 30 days from the date of the letter, the Board would assume he did not desire another hearing and would proceed accordingly. To date, the Veteran has not responded. As such, the Board will proceed with the appeal. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, bilateral sensorineural hearing loss (organic disease of the nervous system) and tinnitus are considered chronic diseases for the purpose of applying 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claims for service connection for hearing loss and tinnitus. Hearing Loss For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155 (1993 A review of the Veteran's active service treatment records reveals no complaints or findings of hearing loss. At the time of his May 1993 enlistment examination, decibel level readings of 5, 0, 0, 0, and 0 in the right ear and 15, 10, 0, 0, and 0 in the left ear were reported at 500, 1000, 2000, 3000 and 4000 Hertz. At the time of a May 1995 audiogram, the Veteran was noted to have decibel level readings of 10, 0, 0, 0 and 0 in the right ear and 15, 0, 0, 10, and 0 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of an April 1996 audiogram, the Veteran was noted to have decibel level readings of 5, 0, 5, 0 and 0 in the right ear, and 0, -5, 5, 5, and -5 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of a September 1996 audiogram, the Veteran was noted to have decibel level readings of 5, 5, 15, 15 and 10 in the right ear, and 15, 5, 5, 0, and 10 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of his September 1996 final physical, the Veteran was noted to have decibel level readings of 5, 5, 15, 10 and 10 in the right ear, and 15, 5, 0, 5, and -5 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. On his September 1996 report of medical history, the Veteran checked the "no" box when asked if he had or had ever had hearing loss. In conjunction with his claim, the Veteran was afforded a VA examination in July 2018. At that time, the Veteran was noted to have decibel level readings of 10, 10, 5, 10 and 15 in the right ear and 10, 5, 10, 15, and 15 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 94 percent in both ears. The examiner indicated that there was no hearing loss. As to service connection for bilateral hearing loss, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the United States Court of Appeals for Veterans Claims interpretation of 38 U.S.C. § 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). While the Veteran may be competent to report diminished hearing, he has not been shown to have the requisite training or credentials needed to ascertain whether the auditory thresholds or speech recognition thresholds set forth in 38 C.F.R. § 3.385 have been met as this is a medically complex question that is also based on objective testing (audiometric and speech recognition) that the Veteran cannot perform on himself. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The competent evidence, including the VA audiometric examination, affirmatively shows that the Veteran does not currently have a hearing loss as defined in 38 C.F.R. § 3.385. For VA disability compensation purposes, the Veteran's hearing impairment does not meet the regulatory criteria to be considered a hearing loss disability. See 38 C.F.R. § 3.385. Because a current disability of hearing loss has not been demonstrated, the presumptions referable to chronic diseases could not serve to establish service connection. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. As such, the criteria for service connection have not been met, and the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Tinnitus The Veteran maintains that he currently has tinnitus as result of inservice noise exposure. The Veteran's DD214 reveals that his MOS was a small arms repairer. The Veteran has also been awarded the Rifle Sharpshooter Badge and the Pistol Expert Badge. In conjunction with his claim, the Veteran was afforded a VA examination in July 2018. At that time, a diagnosis of tinnitus was rendered. The Veteran reported that his MOS was "ground ordinance maintenance". The Veteran recalled being exposed to the following noise sources for 3 to 3.5 years while in the military: artillery, 50 caliber machine guns, M240 golf machine guns, grenade launchers and explosives. He stated that hearing protection was not offered during his military service. Following military service, the Veteran did not work in noisy occupations. He used firearms, on occasion, and stated that he always used hearing protection when shooting. The examiner noted that the Veteran believed the tinnitus onset was in 1999, during a trip in an airplane/jet, with sudden elevation. The examiner opined that it was less likely than not (less than 50% probability) that the Veteran's tinnitus was caused by or a result of military noise exposure. As rationale, she indicated that the Veteran reported that his tinnitus began about two years after the conclusion of military service and that no mention of tinnitus was found in Veteran's C-file service treatment records. In his September 2018 notice of disagreement, the Veteran related his tinnitus to his time in the Marines. The Board finds that tinnitus was incurred in and is attributable to service. The appellant has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. While the appellant's service treatment records do not note any findings of tinnitus, the Veteran, by his own statements, has indicated that he had tinnitus in service. The Veteran has reported experiencing recurrent tinnitus symptomatology since service and, despite some inconsistencies, the Board finds his lay accounts to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, as the evidence is in relative equipoise, the Board finds that the appellant experienced recurrent tinnitus symptomatology. The Board does note that the VA examiner found it was less likely than not that the Veteran's tinnitus was related to his period of service, noting that the Veteran reported the onset in 1999, following an airplane incident. However, the examiner did not address the Veteran's inservice noise exposure. Moreover, the Veteran has reported inservice noise exposure and has reported on several occasions that his tinnitus had its onset in and is related to his period of service. As such, the evidence demonstrates credible evidence of in-service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.