Citation Nr: A25035650 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240625-451187 DATE: April 17, 2025 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for sinusitis is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for headaches is denied. Entitlement to an initial compensable disability rating for non-allergic rhinitis is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to service. 2. The evidence of record persuasively weighs against finding that the Veteran has had sinusitis at any time during or approximate to the pendency of the claim. 3. The evidence of record persuasively weighs against finding that the Veteran has had bilateral hearing loss for VA purposes at any time during the pendency of the claim. 4. The evidence of record persuasively weighs against finding that the Veteran's tension headaches began during active service or is otherwise related to an in-service injury or disease. 5. The evidence persuasively weighs against a finding that the Veteran's non-allergic rhinitis is characterized by the presence of polyps, or that it results in greater than 50 percent obstruction of the bilateral nasal passages or complete obstruction of one nasal passage. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to a compensable disability rating for non-allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2008 to September 2013. The rating decisions on appeal were issued in April 2024 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies In a June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2024 agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 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[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 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). According to the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance, i.e., nearly equal and does not require the evidence to be in exact equipoise. Id. 1. Entitlement to service connection for tinnitus is granted. After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board affords the Veteran reasonable doubt and grants service connection for tinnitus. With regard to a present disability, in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court held that tinnitus is a condition which is capable of lay observation. The Veteran has reported constant light ringing in both ears. As such, the first element of service connection is met. With regard to an in-service injury, the Veteran's military occupational specialty (MOS) was Air Communications Navigational Systems Technician. The Department of Defense's Duty MOS Noise Exposure Listing indicates that similar specialties had a "highly probable" likelihood of exposure to hazardous noise and VA has conceded exposure to hazardous noise in service. Additionally, the Veteran reported exposure to military transport aircraft, missiles, sirens, shooting ranges, and the flight line in Afghanistan. Given the foregoing, exposure to acoustic trauma is conceded and the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran's tinnitus and service, the record consists of a November 2023 statement from the Veteran reporting he was frequently exposed to loud sounds and began experiencing ringing in his ears since service. The record also consists of a negative VA medical opinion regarding the etiology of the Veteran's tinnitus. In a January 2024 medical opinion, a VA examiner opined that the Veteran's tinnitus was at least as likely as not a symptom of his non-service-connected hearing loss, and less likely than not related to military noise exposure. The examiner explained that the Veteran's exit exam showed no significant shift in hearing compared to his entrance exam, which was objective evidence of no auditory damage. Further, the Veteran's first complaint of tinnitus was more than 10 years after service. As such, a nexus could not be established. The Board finds that the Veteran is competent to report experiencing in-service hazardous noise exposure and resultant auditory pathology in the form of tinnitus. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence in the record to suggest that the Veteran's statements are not credible. Given the negative VA medical opinion and the Veteran's competent and credible statements, the Board resolves doubt in the Veteran's favor and finds that the third element of service connection has been met. As such, the Board finds that the Veteran's tinnitus was incurred in service and the claim of entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Entitlement to service connection for sinusitis is denied. The Veteran is seeking to establish service connection for sinusitis. The Veteran contends he suffers from sinusitis related to environmental hazards. The Veteran was afforded a VA examination for sinusitis/rhinitis and other conditions of the nose, throat, larynx and pharynx in February 2024. The Veteran reported chronic nasal symptoms since around 2010 that were worse since his deployment to Afghanistan. He noted he had never been diagnosed with a sinusitis infection. The VA examiner diagnosed the Veteran with non-allergic rhinitis but indicated there was no diagnosis of sinusitis, as there were no signs, chronic symptoms or medical records to render a diagnosis. Based on the evidence of record, the Board finds the Veteran does not have sinusitis that is diagnosed or results in functional impairment. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for sinusitis is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 3. Entitlement to service connection for bilateral hearing loss is denied. 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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 was afforded a VA audiological examination for his claim of hearing loss in January 2024. Puretone thresholds, in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Right 20 15 15 15 15 Left 15 15 10 10 15 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies. Following review of the evidence, the Board finds that the criteria under 38 C.F.R. § 3.385 to consider the Veteran's bilateral hearing loss to be a disability for VA purposes have not been met. The evidence does not show that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or that the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or that speech recognition scores using the Maryland CNC test are less than 94 percent. In this case, the competent evidence of record does not support that the Veteran's hearing was a disability for VA purposes at any time during the appeal period. Therefore, without a current diagnosis of a hearing loss disability in accordance with 38 C.F.R. § 3.385, service connection is not warranted. The Board has considered the lay evidence of record. As a layperson, the Veteran is competent to report that he experiences difficulty hearing in both ears. However, he is not competent to render a diagnosis of a bilateral hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for bilateral hearing loss is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 4. Entitlement to service connection for headaches is denied. The Veteran is seeking to establish service connection for headaches. The Veteran contends he suffers from headaches that onset in service. Alternatively, he asserts his headaches are related to exposure to environmental hazards during service. Review of the Veteran's service treatment records reflect that in September 2008, the Veteran denied headaches. In April 2010, acetaminophen was prescribed for headaches as needed. The Veteran's June 2013 Report of Medical History upon his separation from service reflected he denied having, or having ever had, frequent or severe headaches. The Veteran was afforded a VA examination for headaches in February 2024. The Veteran reported chronic weekly frontal headaches beginning around 2015. He indicated he had never been evaluated, diagnosed, or treated for headaches in service or post-service. The VA examiner diagnosed the Veteran with tension headaches and opined it was less likely than not related to service, to include his in-service toxic exposure risk activity (TERA). The examiner explained there was inadequate medical evidence to support tension headaches were caused by TERA as experienced by the Veteran in Southwest Asia. According to medical literature, tension headaches were thought to be the result of genetics and abnormal brain activity temporarily affecting the nerves. The examiner explained that the cause of tension headaches was complicated but when one had a headache, it was because specific nerves in the blood vessels sent pain signals to the brain. Additionally, the examiner noted that the Veteran reported onset of headaches in 2015, which was after his separation from service. While there was a notation in April 2010 records of a prescription for acetaminophen as needed for headaches, the examiner indicated there were no service treatment record discussing the prescription for headaches and it was prescribed at the same time as sore throat lozenges, prophylaxis antibiotic, and antifungal ointment indicating possible prophylaxis prescriptions for wounds, rashes, and pain. Based on the above, the Board finds the evidence of record persuasively weighs against finding the Veteran's headaches are related to service, to include his TERA. The evidence does not show the Veteran's headaches onset in service or were chronic. The Board finds the opinions of the January 2024 VA examiner to be probative, as he considered the Veteran's TERA and explained that there was no medical evidence available that provided any indication of a relationship between the development of headaches and the indicated TERA, and the Veteran's service treatment records did not reflect a headache condition. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to service connection for headaches is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 5. Entitlement to an initial compensable disability rating for non-allergic rhinitis is denied. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's non-allergic rhinitis is evaluated under Diagnostic Code 6522, for allergic or vasomotor rhinitis. Under this code, a compensable rating of 10 percent is warranted for rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for rhinitis with polyps. Diagnostic Code 6522 does not contain provisions for a zero percent evaluation; however, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran was afforded a VA examination for sinusitis/rhinitis and other conditions in February 2024. The Veteran reported chronic nasal symptoms since about 2010 which became worse with his deployment to Afghanistan. He currently experienced daily post-nasal drip, rhinorrhea, bilateral nasal congestion, and stuffiness all year round and worse at night. He had no sinus infections. On examination, the VA examiner indicated the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side due to rhinitis. There was permanent hypertrophy of the nasal turbinates and no nasal polyps. The Veteran did not have granulomatous rhinitis, rhinoscleroma, Wegener's granulomatosis or lethal midline granuloma. The examiner indicated the Veteran's non-allergic rhinitis did not impact his ability to work. Based on the record, the Board finds the evidence persuasively weighs against finding that the Veteran's non-allergic rhinitis is of a severity that warrants a higher rating. The February 2024 VA examiner noted the Veteran did not exhibit a greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side due to rhinitis and there was no evidence of nasal polyps. The Board also considered the Veteran's VA and private treatment records, but they do not contain complaints or findings that suggest a higher rating should be assigned. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to an initial compensable disability rating for non-allergic rhinitis is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt 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.