Citation Nr: A25035585 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 241015-487170 DATE: April 17, 2025 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss is not etiologically linked to his active-duty service. 2. The Veteran's tinnitus is not actively linked to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1991 to December 1994. In the present case, the agency of original jurisdiction (AOJ) decided the issues on appeal on July 3, 2024. The Veteran filed a timely appeal of that decision using VA Form 10182 in October 2024 and requested Direct Review with the Board. Accordingly, the Board will consider evidence of record up to the July 3, 2024, AOJ decision. Evidence submitted outside of this time frame cannot be considered. 38 C.F.R. § 20.300. In the July 2024 decision, the AOJ issued a favorable finding that new and relevant evidence had been received to readjudicate the claims on appeal. The Board is bound by this favorable finding. Accordingly, the question of whether new and relevant evidence was submitted sufficient to readjudicate these claims shall not be considered herein. 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. To establish entitlement to service-connected compensation benefits, 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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for bilateral hearing loss In its July 2024 rating decision, the AOJ favorably found the Veteran has been diagnosed with a current disability and the evidence shows a qualifying event, injury, or disease in service in that the Veteran was exposed to hazardous noise during service. Additionally, the Veteran's DD 214 showed service in the Persian Gulf and Somalia in 1993. The Board is bound by these favorable findings. The remaining issue is a nexus. In April 2014, the Veteran underwent a VA audiometric examination. The examiner found the Veteran's hearing loss was not due to his active-duty service based on normal audiological results at enlistment and separation. The Board finds this opinion is inadequate as the examiner's rationale failed to address the Veteran's lay statements. Notably, normal hearing shown on audiometric testing at separation bar service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In June 2024, the Veteran underwent a VA audiometric examination. The examiner found the Veteran's hearing loss was not due to his active-duty service based on normal audiological results at enlistment and separation. Additionally, the examiner found there were no significant threshold shifts between enlistment and separation. Turning to lay evidence, the examiner noted the Veteran denied subjective complaints of hearing loss on a medical history report at separation in November 1994. The examiner explained that research has shown hearing loss will not continue once the offending noise exposure has ceased. Thus, there must be a nexus of auditory damage to relate the Veteran's current hearing loss to military noise. As there was no objective evidence of hearing loss during or within a year of service, the examiner found no such nexus in this case. The Board finds the opinion to be probative as it is supported by sufficient rationale and reveals the examiner's review of the relevant medical evidence and consideration of lay evidence. Pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act), the June 2024 examiner also provided a medical opinion addressing the possibility of a nexus between the Veteran's hearing loss and his participation in toxic exposure risk activity (TERA) during service. See 38 U.S.C. § 1168 (a)(1). The examiner opined that while the Veteran participated in TERA, the record was devoid of evidence of toxic exposure during service. Without any evidence of exposure to a toxin, the examiner opined the Veteran's hearing loss was not related to his participation in TERA during service. For the foregoing reasons, the Board finds that the evidence does not support the Veteran's claim for service connection for bilateral hearing loss. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). 2. Entitlement to service connection for tinnitus The Veteran asserts his tinnitus is etiologically related to in-service acoustic trauma. At the outset, the Board notes as tinnitus is self-diagnosable, a current disability is not at issue. In its July 2024 rating decision, the AOJ favorably found the evidence shows a qualifying event, injury, or disease in service in that the Veteran was exposed to hazardous noise during service. Additionally, the Veteran's DD 214 showed service in the Persian Gulf and Somalia in 1993. The Board is bound by these favorable findings. Nevertheless, the claim must fail for lack of nexus. A review of the service medical records is silent for treatment or a diagnosis of tinnitus during the Veteran's active-duty service. In April 2014, the Veteran underwent a VA examination for tinnitus and hearing loss. The Veteran reported that his tinnitus began approximately 10-15 years prior, or 5 to 10 years after his military service. The VA examiner opined the Veteran's tinnitus was not due to his active-duty service because there were no complaints of tinnitus in his records. The Board finds this opinion inadequate as it is based solely on the lack of documented complaints and treatment during and after service. The Veteran is competent to report when he first experienced tinnitus and whether his symptoms had continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, he has provided conflicting information in this regard. As noted, the Veteran reported that his tinnitus started approximately 10-15 years prior to the April 2014 examination. When the Veteran was afforded a new VA examination in June 2024, the Veteran reported that his tinnitus began soon after active-duty separation. The June 2024 examiner also provided a negative nexus opinion. The examiner found that based on the lack of medical evidence of tinnitus in service, lack of acoustic damage in service, and the Veteran's lay statements about the timing of the onset of his tinnitus, it was less likely than not that his tinnitus was related to military service. The examiner also opined that while the Veteran participated in TERA, the record was devoid of evidence of toxic exposure during service. Without any evidence of exposure to a particular toxin, the examiner opined the Veteran's hearing loss was not related to his participation in TERA during service. The Board finds the opinion adequate as the examiner performed a thorough examination, including review of the Veteran's medical history and symptomology. Moreover, the examiner's rationale expressly included consideration of the Veteran's lay statements as well as the medical evidence of record making it highly probative. For the foregoing reasons, the Board finds the evidence the evidence of record is persuasively against the establishment of a nexus to active-duty service. The claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sherman, C 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.