Citation Nr: 1641799 Decision Date: 10/28/16 Archive Date: 11/08/16 DOCKET NO. 09-25 789 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the VA RO. This appeal has previously been before the Board, most recently in September 2013, when it remanded the Veteran's claims for further development of the medical evidence of record. As is discussed in greater detail below, the Board finds that its remand instructions have been substantially complied with, and the Board will proceed in adjudicating the Veteran's claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that when the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT The evidence of record is at least in equipoise as to whether a relationship exists between the Veteran's bilateral hearing loss disability, his tinnitus, and his active duty service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability and tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's claims are being granted. As such, the Board finds that any error related to VA's duties to notify and assist is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Kent v. Nicholson, 20 Vet. App. 1 (2006); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In general, service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Hearing loss and tinnitus are chronic diseases, and service connection may be established based on a continuity of symptomatology. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014); VAOPGCPREC 3-03 (July 16, 2003). Service connection for impaired hearing is established only when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels in decibels over a range of frequencies in Hertz. Hensley v. Brown, 5 Vet. App. 155, 158 (1993). VA considers impaired hearing to be a disability when (a) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater, or; (b) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater, or; (c) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2015). In this case, at the time of his October 1968 service entrance examination, the Veteran showed the following puretone thresholds, recorded in decibels (ISO-ANSI conversion): HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 0 (10) -5 (5) 15 (25) 50 (55) LEFT 5 (20) -5 (5) -5 (5) 25 (35) 30 (35) As such, the Veteran clearly had a right ear hearing loss disability for VA purposes at service enlistment. 38 C.F.R. § 3.385 (2015). In making this determination, the Board notes that the October 1968 examination specifically stated that the results were provided using the standards set forth by the American Standards Association (ASA). Current standards have since been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The Board has converted the ASA standards to ISO-ANSI standards, and the converted figure is reported in parentheses above. Accordingly, the above-described presumption of soundness does not attach with respect to the Veteran's hearing in the right ear because hearing loss was noted during his October 1968 enlistment examination. If, as in this case, a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but he may instead bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir 2004). In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease is considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2015). With regard to the presence of a current disability, the Veteran has been diagnosed with a bilateral hearing loss disability. 38 C.F.R. § 3.385. The Veteran has complained of tinnitus throughout his appeal. See Charles v. Principi, 16 Vet. App. 370 (2002) (as a "subjective" ailment, the existence of tinnitus is generally determined by whether or not the veteran claims to experience it). Thus, current disabilities are shown with respect to both of the Veteran's claims. With regard to an in-service event or injury, the Veteran contends that he was exposed to loud noise in service while serving as an aircraft mechanic. The second Hickson element, evidence of an in-service event, disease, or injury, is accordingly met with respect to each of the Veteran's claims. The remaining questions, then, are whether the Veteran's left ear hearing loss and tinnitus are related to service, and whether the Veteran's preexisting right ear hearing loss was aggravated in service. In March 2016, the Board solicited an expert audiological opinion, and in April 2016, the chief of the audiology and speech pathology service at a VA Medical Center opined that it was at least as likely as not that the Veteran's left ear hearing loss and tinnitus were related to his military service. The expert offered an extensive rationale for this opinion that primarily discussed the presence of a hearing loss relatively soon after separation, the Veteran's in-service accounts of noise exposure, and the Veteran's credible report of his history of noise exposure. The examiner further opined that the Veteran's tinnitus was related to his hearing loss, given the strong medical correlation between hearing loss and tinnitus. While the examiner did not specifically opine that the Veteran's preexisting right ear hearing loss was aggravated by service, the examiner indicated that had certain post-service audiometric information been legible, he would have opined that the Veteran's right ear hearing loss was indeed related to service. Given that the medical evidence is at least in equipoise as to the relationship between the Veteran's left ear hearing loss and tinnitus are related to service, and given the examiner's willingness to connect the Veteran's right ear hearing loss to service, the Board finds that the Veteran's right ear hearing loss was aggravated by service. With that said, the Board acknowledges that the record contains medical opinions, notably from September 2007 and November 2013, that failed to find a relationship between the Veteran's hearing loss and tinnitus and his military service. These opinions, like the April 2016 opinion, are well reasoned, but the Board cannot find that they are of greater probative value than the April 2016 opinion. In other words, the evidence is in equipoise as to whether a relationship exists between the Veteran's bilateral hearing loss disability, his tinnitus, and his active duty service, and service connection is granted. ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs