Citation Nr: 1602155 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 10-03 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION The Veteran is represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the pendency of this appeal, jurisdiction over the Veteran's claim was transferred to the RO in Houston, Texas. FINDINGS OF FACT 1. The Veteran had left ear hearing loss prior to entering service. 2. The Veteran's left ear hearing loss underwent an increase in severity during his military service. 3. There was no clear and unmistakable evidence that the Veteran's left ear hearing loss was not aggravated during his active duty service or that the increase was due to the natural progression of the disability. 4. The Veteran's current right ear hearing loss and tinnitus cannot be reasonably disassociated from his military service. CONCLUSIONS OF LAW 1. Pre-existing left ear hearing loss was aggravated by active duty. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2015). 2. Right ear hearing loss was incurred in active duty. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.385 (2015). 3. Tinnitus was incurred in active duty. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, service connection may be granted on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 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 evidence of record amply demonstrates that the Veteran currently experiences left and right ear hearing loss that satisfies the regulatory criteria. Id. The evidence of record also includes a current diagnosis of tinnitus. As such, the Board finds that the evidence of record in includes a current diagnosis of left and right ear hearing loss and tinnitus and, thus, this aspect of service connection is established. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Left Ear Hearing Loss Generally, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (2015). History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. §§ 3.304(b)(1) (2015). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111 for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. In May 1967, the Veteran underwent an induction examination, during which audiological testing demonstrated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 (30) 15 (20) 30 (40) 35 (45) 55 (60) Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). In the audiometric charts herein, the ASA figures are on the left and are not in parentheses. Since November 1, 1967, standards for audiometric results have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in the charts herein, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. Based on these puretone thresholds, the Veteran had pre-existing left ear hearing loss. 38 C.F.R. § 3.385. In making this determination, the Board observes that the examiner did not specifically note a diagnosis of left ear hearing loss; however, the examiner indicated that the "hearing and ear" aspect of the Veteran's PUHLES profile was scored a "2." The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). As such, the Board finds that a left ear hearing loss was effectively noted in the May 1967 induction examination. Where a pre-existing disease or injury is noted on the entrance examination, 38 U.S.C.A. § 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the disability at issue. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a pre-existing condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under 38 U.S.C.A. § 1153 unless the underlying condition worsened. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran served on active duty from August 1967 to August 1969, the entirety of which occurred during a period of war. 38 C.F.R. § 3.2(f) (2015). As such, the regulations direct VA to presume that the Veteran's pre-existing left ear hearing loss was aggravated by his active duty if the evidence demonstrates that it underwent an increase in severity during his active service. In order to rebut this presumption, it must be shown by clear and unmistakable evidence that the Veteran's left ear hearing loss was not aggravated or that the aggravation was due to the natural progression of the disability. In August 1969, the Veteran underwent a service discharge examination that included audiological testing demonstrating puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 25 35 - 70 The Veteran's puretone thresholds did not worsen at 500, 1000, or 2000 Hertz, at 4000 Hertz, the Veteran's puretone threshold increased by 10 decibels when compared to this May 1967 induction examination. As such, the regulations require the Board to presume that the Veteran's pre-existing left ear hearing loss was aggravated during his active duty unless there is clear and unmistakable evidence that his left ear hearing loss was not aggravated or that the aggravation was due to the natural progression of the disability. In July 2008, the Veteran underwent a VA audiological examination. Therein, the examiner did not render an opinion regarding whether the Veteran's pre-existing left ear hearing loss was not aggravated during his active duty, or whether the aggravation was the natural progression of the disability. In September 2015, a different VA examiner rendered a supplemental opinion as to whether the Veteran's pre-existing left ear hearing loss was aggravated during his active duty. In the November 2015 remand, he Board determined that this examination was not adequate and, consequently, remanded the Veteran's claim to obtain another supplemental opinion from the same VA examiner. In December 2015, the VA examiner opined that the Veteran's pre-existing left ear hearing loss "was NOT adversely affected by military service nor aggravated beyond normal progression of [the] disorder." Ultimately, the examiner opined: Therefore, in my opinion, [the Veteran's] left ear hearing was essentially stable and less likely than not [[less than] 50% probability] adversely affected by military service or hazardous noise exposures. Although the December 2015 VA examiner's opinion is negative to the Veteran's claim, the opinion does not in and of itself constitute clear and unmistakable evidence that the Veteran's pre-existing left ear hearing loss was not aggravated during his active duty. Further, the examiner's opinion does not constitute clear and convincing evidence that any in-service aggravation was due to the natural progression of the disability. The examiner's opinion is phrased in terms of a probability, which the Board finds does not rise to the level of "clear and unmistakable." The record is otherwise negative for evidence assessing whether the Veteran's pre-existing left ear hearing loss was aggravated during his active duty, or whether any such aggravation was due to the natural progression of the disability. As such, the Board finds that the presumption of aggravation has not been rebutted and, thus, service connection for the Veteran's left ear hearing loss is warranted. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Right Ear Hearing Loss and Tinnitus Throughout the pendency of this appeal, the Veteran has asserted that his current right ear hearing loss and tinnitus are due to his in-service exposure to explosions and/or noise associated with military ordnance. Indeed, the Veteran's DD 214 demonstrates that his military occupational specialty was Wireman and that served in the Republic of Vietnam. The Veteran asserted that duties as a Wireman included being in the field. As such, the Board finds that the Veteran was exposed to in-service acoustic trauma. The salient aspect with respect these claims is whether the Veteran's current right ear hearing loss and/or tinnitus is etiologically related to his in-service noise exposure. In a March 2008 letter, S P. C., a Certified Audiologist, recounted the Veteran's pertinent medical history, including the Veteran's in-service noise exposure, post-service occupations, post-service recreational activity. After audiological testing, the audiologist opined as follows: The etiology of your [right ear] hearing loss and bilateral tinnitus is at least as likely as not related to excessive noise exposure while serving in the military. The etiology of your bilateral tinnitus is at least as likely as not a symptom associated with hearing loss. The rationale for these statements is that these conditions are known to be associated with excessive noise exposure. In the August 2015 remand, the Board determined that the probative value of this opinion was reduced because the audiologist failed to include an underlying rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). In July 2008, the Veteran underwent a VA audiological examination. However, the examiner did not render an opinion as to whether the Veteran's right ear hearing loss or tinnitus was incurred in or due to his active duty. In August 2015, a supplemental opinion was obtained from a different VA examiner. In the November 2015 remand, the Board determined that this opinion was not adequate because it did not include rationale to support the proffered opinion. Id. In December 2015, a second supplemental opinion was obtained from the August 2015 VA examiner. Therein, with respect to the Veteran's right ear hearing loss, the examiner compared the Veteran's May 1967 induction examination audiological testing results to those produced as a result of his August 1969 discharge examination. The examiner characterized a 10-decibel worsening at 4000 Hertz as a "significant change." However, the examiner then stated that this shift should be interpreted with "extreme caution," because the 10-decibel shift occurred only at one frequency. In support of this conclusion, the examiner explained that a 10-decibel shift at one frequency is not as reliable as 10-decibel shift at adjacent frequencies. If there is only one 10-decible shift, that shift is more likely due to normal "test-retest variance." As such, the examiner opined that the Veteran's right ear hearing loss was essentially normal during his active duty and, thus, is "less likely than not [[less than] 50 [percent] probability] adversely affected by military service or hazardous noise exposure." However, when the examiner applied the adjacent frequency/test-retest variance concept to the Veteran's discharge audiological results, the examiner used the puretone thresholds at 2000 Hertz and 4000 Hertz; the Veteran was not tested at 3000 Hertz upon discharge. The frequencies of 2000 Hertz and 4000 Hertz are not adjacent. The examiner's supplemental opinion did not address how 2000 Hertz and 4000 Hertz are adjacent. Consequently, the Board finds that the probative value of the December 2015 VA examination is reduced. Nieves-Rodriguez, 22 Vet. App. at 304. With respect to the Veteran's tinnitus, the December 2015 VA examiner provided the following opinion in regards to whether or not the Veteran was exposure to in-service noise/acoustic trauma: Although the probability exist for the service related injury, in my opinion, it is not greater than 50 [percent] probability secondary to [the Veteran's] unremarkable case history report and [service treatment records]. As discussed above, the Board determined that based on the Veteran's military occupational specialty and his competent lay report of in-service events, the Veteran was exposed to in-service noise/acoustic trauma. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). The December 2015 VA examiner ultimately rendered a negative etiologically opinion that, at least in part, is predicated on an incorrect determination that the Veteran was not exposed to in-service noise/acoustic trauma. Moreover, the examiner's opinion found that the probability was not greater than 50 percent that tinnitus was related to service, when "the probability" only has to be at 50 percent. As such, the Board finds that the December 2015 supplemental opinion, insofar as it pertains to tinnitus, is not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative values of the relevant etiological opinions of record regarding the Veteran's right ear hearing loss and tinnitus are reduced for the reasons discussed above. However, the Board is persuaded by S. P. C.'s March 2008 opinion, especially when it is viewed in concert with the nature of the Veteran's service and his service audiological results. The record is otherwise negative for evidence that disassociates the Veteran's right ear hearing loss and/or tinnitus from his active duty. Consequently, the Board finds that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection for right ear hearing loss and tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for left ear hearing loss is granted. Service connection for right ear hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs