Citation Nr: 18144477 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-12 074 DATE: October 24, 2018 ORDER Service connection for sensorineural hearing loss in the left ear is granted. Service connection for tinnitus in the left ear is granted. Service connection for sensorineural hearing loss in the right ear is denied. Service connection for tinnitus in the right ear is denied. REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran currently has sensorineural hearing loss in the left ear to an extent recognized as a disability for VA purposes, and the evidence is in equipoise regarding whether it is related to his military service. 2. The Veteran has a current diagnosis of tinnitus in his left ear, and the evidence is in equipoise regarding whether it is related to his military service. 3. The Veteran currently does not have sensorineural hearing loss in the right ear to an extent recognized as a disability for VA purposes. 4. The Veteran currently does not have tinnitus in his right ear. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, the criteria for service connection for sensorineural hearing loss in the left ear have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 2. Resolving all doubt in favor of the Veteran, the criteria for service connection for tinnitus in the left ear have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for sensorineural hearing loss in the right ear have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 4. The criteria for service connection for tinnitus in the right ear have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107, 7104; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1969 to January 1972, including service in Vietnam for which he was awarded the Vietnam Campaign and Service Medals and the Bronze Star Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s Form 9 indicates that he did not request a Board hearing. 1. Service connection for sensorineural hearing loss in the left ear is granted. The Veteran contends that he was exposed to hazardous noise levels on a regular basis during his military service in Vietnam, which resulted in his current left ear disability, including hearing loss and tinnitus. Service connection is warranted where the evidence of record demonstrates that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty during active military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may be found to be service-connected where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). A presumption of service connection attaches to certain diseases enumerated in 38 C.F.R. § 3.309(a). In this case, sensorineural hearing loss and tinnitus are categorized as organic diseases of the nervous system under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Where a veteran has served for at least ninety days during a period of war or after December 31, 1946, and develops an enumerated chronic disease to a compensable degree within one year from the date of separation from service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish a chronic disease in service, a veteran must show a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of an evidentiary showing of continuity. See id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. See id. Continuity of symptomatology is only applicable to those diseases recognized as “chronic” for VA purposes. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013); see also 38 C.F.R. §§ 3.303(b), 3.309(a). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a hearing loss disability is governed by 38 C.F.R. § 3.385, which provides that, for the purposes of applying the laws administered by VA, impaired hearing will be considered a disability only where one of the following is established: (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The threshold for normal hearing ranges between zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. See Hensley, 5 Vet. App. at 157. A veteran may establish direct service connection for a hearing disability that initially manifests several years after separation if the evidence of record demonstrates a causal relationship between the veteran’s current hearing disability and the injury or disease suffered in service. See id. at 164; see also 38 C.F.R. § 3.303(d). Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s sensorineural hearing loss in his left ear is causally related to his active military service. First, both an October 2014 VA examination and a June 2014 private audiological examination reflect hearing thresholds in the left ear of 40 decibels or greater in the 3000 and 4000 hertz frequencies, as well as a speech discrimination score of 92 percent. Accordingly, pursuant to 38 C.F.R. § 3.385, the Board finds that the Veteran has a current hearing loss disability in the left ear for VA purposes. Turning to an in-service injury, the Veteran’s service treatment records note slightly impaired hearing in the left ear upon entry into service in May 1969. At the 4000 hertz frequency, the hearing in the Veteran’s left ear was measured at 35 decibels, which, without evidence of further impairment, falls within normal limits for VA purposes. See 38 C.F.R. § 3.385. The Veteran’s service treatment records do not reflect any complaints of hearing loss or tinnitus in service. The audiometric exam conducted in December 1971, just prior to the Veteran’s separation from service, noted the Veteran’s hearing in the left ear to be 15 decibels at the 4000 hertz frequency, also within normal range for VA purposes. The Veteran has been consistent in his assertions that he has been suffering from symptoms of hearing loss and tinnitus in his left ear since service, and that he first noticed such symptoms upon returning home from Vietnam at the conclusion of his military service. In a statement submitted in June 2014, the Veteran reported that he was exposed to hazardous levels of noise during his training for and his deployment to Vietnam, namely, weapons fire from rockets, small arms, M-14 and M-16 rifles, and other explosions. The Veteran reports that prior to his Vietnam deployment, he was ordered to complete basic training at Ft. Leonard Wood, Missouri, where he was required to qualify with the M-14 rifle. Subsequently, the Veteran contends that he was ordered to complete additional training at Ft. Hood, Texas, where he was required to qualify with the M-16 rifle. In both instances, the Veteran reports that he was discouraged from wearing hearing protection, and that he in fact did not wear hearing protection at any time during his military training. The Veteran also reported to the October 2014 VA examiner that, upon arriving in Vietnam, he was assigned to an Army engineering unit whose base camp came under heavy fire, including nightly rocket and mortar attacks, and that he was required to complete additional sniper training in Vietnam for which he was provided no hearing protection. The Veteran’s June 2014 Statement elaborates further, that as a sniper in Vietnam, he was assigned to a partner with whom he would switch between serving as shooter and spotter, and that he and his partner fired their modified M-14 sniper rifles from a reclining position on the stomach. The Veteran further explained that when the shooter was right-hand dominant, the spotter assumed the spotting position to the right of the shooter, thus resulting in the spotter’s left ear being in close proximity to the rifle’s firing chamber. The Board finds that the Veteran is competent to describe his exposure to loud noises, such as those caused by artillery and weapons fire. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board also finds that the Veteran is competent to describe observable symptoms such as ringing in the ears and to testify as to symptoms such as decreased hearing acuity, which is non-medical in nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, the Board further finds the Veteran’s lay statements to be credible because they have been consistent and are confirmed by the evidence in the record regarding his military service. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (citations omitted). The Veteran’s military service records confirm that he was stationed in Vietnam from August 1970 to August 1971, that he was assigned to an engineering battalion in Vietnam, and that prior to his deployment, he was assigned to Ft. Leonard Wood, Missouri, and Ft. Hood, Texas. Therefore, the Board finds that the Veteran’s contentions regarding his exposure to military acoustic trauma are consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a). Accordingly, because the Veteran has provided competent and credible testimony, the Board finds that the Veteran has established an in-service injury. Finally, turning to the establishment of a nexus, the Board finds that evidence of record is in equipoise regarding the causal relationship between the Veteran’s in-service noise exposure and his current hearing disability. In June 2014, the Veteran’s private audiologist (Dr. G) opined that the configuration of the Veteran’s severe hearing loss in the left ear, and not the right, is highly suggestive of noise damage caused by exposure to right-handed rifle fire where the left ear is closer to the firing chamber than the right ear. Dr. G issued an opinion and report concluding that, given the configuration of the Veteran’s hearing loss, his reports of exposure to right-handed rifle fire in service, and his occupational, medical, and military history, the Veteran’s hearing loss and tinnitus are very likely the result of exposure to hazardous noise levels during military service. The Board finds that Dr. G’s opinion is competent and credible and is therefore entitled to probative weight. Subsequently, an October 2014 VA examiner opined that, although hazardous noise exposure in service was conceded, electronic hearing testing conducted at enlistment and at discharge indicates that the Veteran did not have a significant threshold shift beyond normal variability/normal progression while in service. Thus, the examiner concluded that the Veteran’s hearing loss and tinnitus were less likely as not caused by or a result of noise exposure while in service. However, as stated above, 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where the Veteran’s hearing is noted to fall within normal limits at separation from service. See Hensley, 5 Vet. App. at 164; 38 C.F.R. § 3.303(d). Accordingly, the Board finds the June 2014 VA opinion to hold no probative value due to its reliance upon a rationale that is unsupported by applicable VA regulations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In May 2015, a second private audiologist (Dr. T) issued a positive nexus opinion concluding that the Veteran’s hearing loss and tinnitus are more likely than not due to his exposure to hazardous noise during service. Dr. T opined that although the Veteran’s induction exam demonstrated hearing loss, it was more likely than not that any such hearing loss was exacerbated by in-service exposure to hazardous noise. Dr. T also questioned the validity of the Veteran’s audiometric exam at separation and opined that any hearing loss recovery noted at separation was not likely to occur because sensorineural hearing loss “does not spontaneously recover. It is permanent.” The Board finds that Dr. T’s opinion is competent and credible and is therefore entitled to probative weight. In January 2018, the same VA examiner issued an addendum opinion reiterating his October 2014 opinion that, despite the Veteran’s exposure to hazardous noise during service, the Veteran’s normal audiometric exam at separation rendered it less likely than not that in-service noise exposure caused his current hearing disability. The VA examiner also noted that the Veteran reported no hearing loss or ear trouble on his separation exam, although he did report eye trouble. As support for this opinion, the VA examiner relied upon a 2006 Institute of Medicine (IOM) report on noise and military service which found an insufficient scientific basis to conclude that permanent hearing loss directly attributable to hazardous noise exposure develops long after the noise exposure has concluded. Despite conceding the Veteran’s exposure to hazardous noise while in service, the examiner relied on the IOM panel’s conclusion that delayed onset hearing loss due to previous noise exposure is unlikely to occur. In addition, the examiner incorrectly dismissed Dr. G’s positive nexus opinion for its omission of any discussion of the Veteran’s service records, implying that Dr. G’s presumed failure to review the Veteran’s service records, as well as his reliance upon the Veteran’s reports of the onset of his hearing disability, diminished the probative value of his positive nexus opinion. However, the Board finds that Dr. G’s presumed failure to review the Veteran’s service records does not operate to strip his positive nexus opinion of all probative value; even where a medical examiner appears not to have conducted a full file review, the resulting report may still contribute probative weight where, as here, it contains a competent and persuasive medical opinion. See Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, as stated above, the Veteran is competent and credible to describe the observable symptoms of his hearing loss, see Jandreau, 492 F.3d at 1376-77, and the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009), quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The VA examiner also disagreed with Dr. T’s positive nexus opinion, despite her review of the Veteran’s service records, specifically taking issue with Dr. T’s opinion that the hearing loss noted at the Veteran’s entry to service was sensorineural, and asserting instead that hearing testing conducted during service typically tested only conductive hearing. The examiner further speculated that some portion of the hearing loss noted at the Veteran’s induction was a conductive hearing loss component, which could potentially improve over time. The VA examiner further concluded that the Veteran’s audiometric exam at separation should not be disregarded as invalid due to the possibility that the Veteran’s hearing loss upon entry had been conductive rather than sensorineural, and thus could have in fact improved during his military service. Finally, the VA examiner also opposed what he described as Dr. T’s willingness to afford the Veteran the “benefit of the doubt” that the noise exposure the Veteran reported experiencing during service more likely as not caused or aggravated his hearing loss. The Board finds that the VA examiner’s January 2018 addendum opinion fails to offer any additional probative value, as it is based upon the same faulty reasoning posited by the October 2014 VA examination report, namely the inaccurate assertion that a notation of hearing within normal limits upon separation from service operates as a bar to service connection. As stated above, Hensley clearly provides that normal hearing at separation does not preclude a veteran from entitlement to service connection under 38 C.F.R. § 3.385 where, as in this case, the probative evidence of record supports a finding that the veteran’s hearing disability is due to his exposure to hazardous noise while in service. 5 Vet. App. at 164; see also 38 C.F.R. § 3.303(d). The Board hereby finds that the positive nexus opinions of Dr. G and Dr. T are entitled to significant probative weight, as they contain factually accurate, fully articulated, sound reasoning in support of their conclusions. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Accordingly, in light of the foregoing, the Board finds that the application of the benefit of the doubt rule is warranted in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Due to the June 2014 and October 2014 audiograms reflecting decreased hearing in his left ear, the Veteran’s lay statements regarding his in-service noise exposure and the onset of his hearing loss symptoms, and the positive nexus opinions of Dr. G and Dr. T, the Board finds that there is at least an approximate balance of positive and negative evidence regarding the merits of the issues material to the determination of the matter, and therefore, resolving all reasonable doubt in the Veteran’s favor, service connection for hearing loss in the Veteran’s left ear is warranted in this case. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Service connection for tinnitus in the left ear is granted. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that the Veteran’s tinnitus in his left ear is due to or related to service. First, as stated above, the Veteran reported to Dr. G in June 2014 that he currently has constant left-sided tinnitus. The Board finds that the Veteran is competent to describe observable symptoms such as ringing in the ears, which is non-medical in nature, see Jandreau, 492 F.3d at 1376-77; therefore, the Board finds that the Veteran currently has tinnitus in the left ear. Turning to an in-service injury, as stated above, the Board finds that the Veteran suffered hazardous noise exposure while in service. The Board finds that the Veteran is competent to describe his exposure to loud noises, such as those caused by artillery and weapons fire. See Falzone, 8 Vet. App. at 403. In addition, the Board finds the Veteran’s lay statements to be credible because, as stated above, they have been consistent and are confirmed by the evidence in the record regarding his service in Vietnam. See Caluza, 7 Vet. App. at 511. Finally, turning to the establishment of a nexus, the Board finds that evidence of record is in equipoise regarding the causal relationship between the Veteran’s in-service noise exposure and his current hearing disability. As stated above, although the VA examiner opined that the Veteran’s tinnitus was not caused by his exposure to hazardous noise while in service, the Board finds the VA examiner’s opinion to carry less probative weight than the opinions of Dr. G and Dr. T, both of which found a causal link between the Veteran’s current left-sided tinnitus and his exposure to hazardous noise during his military service. Accordingly, the Board finds that the application of the benefit of the doubt rule is warranted in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Due to the Veteran’s lay statements regarding his in-service noise exposure and the onset of his tinnitus symptoms, and the positive private nexus opinions by Dr. G and Dr. T, the Board finds that there is at least an approximate balance of positive and negative evidence regarding the merits of issues material to the determination of the matter, and therefore, resolving all reasonable doubt in the Veteran’s favor, service connection for tinnitus in the Veteran’s left ear is warranted in this case. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. Service connection for sensorineural hearing loss in the right ear is denied. After careful review of the evidence of record, the Board concludes that the Veteran currently does not have sensorineural hearing loss in the right ear to an extent recognized as a disability for VA purposes. Both an October 2014 VA examination and a June 2014 private audiological report reflect hearing thresholds in the right ear of 25 decibels or lower in all hertz frequencies and speech recognition of 100 percent. Accordingly, the Board finds that the Veteran currently does not have sensorineural hearing loss in the right ear to an extent recognized as a disability for VA purposes. See 38 C.F.R. § 3.385; see also Hensley, 5 Vet. App. at 157. In the absence of competent evidence of a current disability, service connection cannot be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Veteran’s claim for hearing loss in the right ear must be denied. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 4. Service connection for tinnitus in the right ear is denied. After careful review of the evidence of record, the Board concludes that the Veteran currently does not have a current disability of tinnitus in his right ear because the Veteran has not alleged that he experiences right-sided tinnitus symptoms. As stated above, Dr. G’s June 2014 report indicates that the Veteran reported that his military exposure to hazardous noise resulted in “constant left-sided tinnitus,” and does not make reference to the right side. In addition, while not dispositive, both the October 2014 VA examination and the June 2014 private audiological report reflect normal hearing thresholds and speech recognition for the right ear. Accordingly, the Board finds that the Veteran currently does not have not have tinnitus in the right ear, and in the absence of competent evidence of a current disability, service connection cannot be awarded. See Brammer, 3 Vet. App. at 225. Accordingly, the Veteran’s claim for hearing loss in the right ear must be denied. See Shedden, 381 F.3d at 1167. REASONS FOR REMAND Entitlement to service connection for PTSD is remanded. Unfortunately, the Veteran’s service connection claim for PTSD must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A(c). In connection with the Veteran’s PTSD claim, the February 2016 Statement of the Case (SOC) refers both to a VA examination conducted by a psychiatrist at the Golden Clinic on February 11, 2016, and also to VA clinical records reporting a diagnosis of PTSD by a clinical psychologist. Unfortunately, the Veteran’s claims file contains no report of such VA examination and no record of any PTSD diagnosis. Therefore, because it is unclear whether there are additional VA records in existence that would support the Veteran’s PTSD claim, the Board finds that remand of the PTSD claim is necessary to clarify whether such documents exist, and, if so, to associate any and all relevant private and VA examination reports and treatment records with the file so that the Veteran’s PTSD claim can be properly adjudicated. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Accordingly, the matter is REMANDED for the following action: 1. Obtain any and all outstanding VA treatment records from 2014 to the present and associate them with the electronic claims file. (Continued on the next page)   2. Obtain a copy of the February 11, 2016 Examination referenced in the SOC and associate it with the electronic claims file. 3. After the above development and any additionally indicated development has been completed, readjudicate the Veteran’s claim for service connection for PTSD. If the benefit sought is not fully granted, send the Veteran and his representative a Supplemental Statement of the Case and provide the Veteran with an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel