Citation Nr: A25018317 Decision Date: 02/27/25 Archive Date: 02/27/25 DOCKET NO. 230111-312221 DATE: February 27, 2025 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. REMANDED Service connection for migraines is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a current bilateral hearing disability for VA rating purposes at any time during or approximate to the pendency of the claim. 2. The Veteran's tinnitus is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active-duty service from January 2004 until May 2007. The Board made an administrative decision under 38 U.S.C. §§ 3.12(d)(4) in which it found the Veteran's service to have been honorable from January 6, 2004, to June 8, 2006, and other than honorable from June 9, 2006, to May 8, 2007. See October 2020 VA Administrative Decision. The rating decision on appeal was issued in March 2022 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the January 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the March 2022 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of migraines, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Service connection. The Veteran asserts that his bilateral hearing loss and tinnitus are related to acoustic trauma incurred during active-duty service. See February 2022 VA Form 21-256EZ. Specifically, the Veteran states exposure to loud noise due to his military occupation specialty (MOS) which resulted in acoustic trauma. 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. Service connection generally requires evidence showing (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted where there is continuity of symptomatology linking a current chronic disease and a chronic disease in service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Service connection for bilateral hearing loss is denied. Legal Criteria For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3,000, or 4000 Hertz (specified frequencies) is 40 decibels or greater; or when the auditory thresholds for at least three of the specified 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. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold question that must be addressed is whether the Veteran's claimed bilateral hearing loss qualifies as a disability, as defined by VA. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Analysis The Veteran contends he has hearing loss due to his service. See February 2022 Claim. Specifically, he contends that his hearing loss was "caused by an in-service event, injury, or exposure." Id. A March 2022, VA examination reveals that the Veteran reported hearing loss and/or tinnitus. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 03/04/2022 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 10 15 10 11.25 100 LEFT 10 10 15 10 11.25 100 Speech recognition scores based on the Maryland CNC Test were 100 percent in both ears. Based on the above objective testing results, the Veteran's hearing loss does not qualify as a disability for VA rating purposes. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Bruce v. West, 11 Vet. App. 405,409. There is no objective clinical evidence of record confirming he has bilateral hearing loss for VA purposes. While the Veteran has generally alleged that he has bilateral hearing loss due to noise exposure in service, the Board must adhere to the guidelines of 38 C.F.R. § 3.385, which do not provide for a finding of a current disability for pure-tone thresholds or speech recognition scores that fail to meet the required minimum requirement listed in the regulation. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of proof of a present disability there can be no valid claim. The Board acknowledges the favorable findings from the RO which indicate the high probability that the Veteran was exposed to moderate hazardous noise during his military services as a chemical operations specialist, however, the evidence is insufficient to show a current disability. The Board is cognizant of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, given the specific regulations that require the minimum diagnostic thresholds to establish hearing loss as a disability for VA compensation purposes as discussed above, the Board finds that Saunders is inapplicable to the facts of this case. Thus, the Board finds there is no current disability to connect to service. As the evidence is not in approximate balance for the service connection claim for bilateral hearing loss, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b). The Board finds that service connection for bilateral hearing loss is not warranted. 2. Service connection for tinnitus is granted. The Veteran asserts that his tinnitus is due to his active-duty service. See February 2022 Veteran Fully Developed Claim. Specifically, he states "[he] has right ear damage caused by firing his rifle without proper protection." See March 2023 Fully Developed Claim. Veteran is currently diagnosed with tinnitus. See March 2022 VA Examination. The March 2022 VA examiner opined that "The Veteran had no complaint of or diagnosis of tinnitus in the service medical records [and] denial of tinnitus on June 2, 2019, service treatment record, [therefore] per VA standards claimant tinnitus is less likely than not caused by or result of an event in military service." Accordingly, the Board assigns minimal probative weight to the March 2022, VA examination due to the examiner relying on lack of records and not considering the Veteran's credible lay statements regarding onset of tinnitus. Tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In the March 2023 rating decision, the AOJ made the favorable findings that the Veteran MOS, chemical operations specialist, has a moderate probability of hazardous noise exposure. The Board finds the Veteran's lays statements credible regarding onset of tinnitus and finds greater weight of evidence in support the Veteran's claim. Accordingly, the Veteran's claim for service connection for tinnitus is granted. REASONS FOR REMAND 1. Service connection for migraines is remanded. The Veteran contends his migraines are related to his military service. Specifically, he contends that "while deployed in Iraq [he] was exposed to the Burn Pits in Camp Anaconda...[and] with no protection gear [causing] sinus infections that trigger migraines." See March 2023 Veteran Claim. In a July 3, 2019, Medical Treatment Records, the Veteran reported intermittent brief episodes for a couple weeks since falling and hitting his head. The Veteran is currently diagnosed with postconcussion syndrome with headaches. See January 7, 2007, Service Treatment Record. In a July 2022, Rating Decision, the AOJ denied the Veteran's claim for migraine due to the onset of migraines resulting from an incident during a period of service which was determined to be other than honorable. As noted above, the Board made an administrative decision under 38 U.S.C. §§ 3.12(d)(4) in which it found the Veteran's service to have been other than honorable from June 9, 2006, to May 8, 2007. See October 2020 VA Administrative Decision. The AOJ denied the claim without conducting a VA examination to determine the full nature and etiology or consider whether the migraines may have been aggravated by a service-connected disability. The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds the record minimally satisfies the low threshold. The failure of the RO to provide examinations for the Veteran in light of his statements and medical records, is a pre-decisional duty to assist error. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the migraine condition. (A) The examiner must identify all current migraine related diagnoses. (B) The clinician should opine whether it is at least as likely as not (the likelihood at least approximately balanced or nearly equal, if not higher) that the Veteran's migraines were (i) caused OR (ii) aggravated by any current service-connected disability to include his current PTSD. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. In doing so, the clinician must include all pertinent evidence of record, to specifically include, but not limited to the following: 1) the Veteran's lay statement regarding migraines during Iraq deployments 2) July 3, 2019, Medical Treatment records indicating persistent migraine headaches. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Note that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Martinezorta, Rafael 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.