Citation Nr: 18147105 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-31 772 DATE: November 2, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss was caused by active service. 2. The Veteran’s right ear hearing loss was aggravated by active service. 3. The Veteran’s tinnitus is associated with his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1964 to December 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision of the Department of Veterans Affairs (VA) Boston, Massachusetts Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004).). Service connection may be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Bilateral sensorineural hearing loss is an organic disease of the nervous system and thus falls within 38 C.F.R. § 3.309(a). See VA Under Secretary for Health Memorandum (Oct. 1995); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (“[T]he Secretary has made clear that sensorineural hearing loss is considered subject to 3.309(a) as an ‘[o]rganic disease[ ] of the nervous system’”.). Alternatively, for the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §§ 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. VA considers impaired hearing to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran’s period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis from a grant of service connection for hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is competent to testify he has decreased hearing acuity. The Veteran, however, is not competent to establish bilateral hearing loss disability for VA purposes, as this is a medical question that must be based on audiometric testing pursuant to 28 C.F.R. § 3.385. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 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). The Veteran asserts that service connection for bilateral hearing loss and tinnitus is warranted. He contends that the disabilities are due to noise exposure during active service including exposure to pistol and rifle fire a couple times a year for qualifications and exposure to rocket launchers, hand grenades, rifle grenades, machine guns, and mortars during basic training. See, July 2016 Form 9. A review of the Veteran’s Certificate of Release or Discharge from Active Duty (DD Form 214) states his military occupational specialty (MOS) as supply. His military commendations include certifications for rifle and pistol sharpshooting. See the June 1966 Certificate of Release or Discharge from Active Duty. In July 1964, the Veteran underwent audiometric testing at his enlistment examination. The puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A N/A 10 N/A 30 LEFT 0 0 0 N/A 0 The examiner noted defective hearing in the Veteran’s right ear. Audiometric testing revealed some degree of right ear hearing loss at 4000 Hertz. The Veteran was afforded a separation examination in December 1965. However, no audiometric testing was done. In January 2012, the Veteran underwent a private audiological examination with puretone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 45 60 90 LEFT 50 50 70 85 95 The Veteran underwent an additional private audiological examination in January 2015. His puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 55 / 95 LEFT 50 60 75 / 100 In March 2015, the Veteran was afforded a VA audiological examination. The VA audiologist reviewed the claims file; considered the Veteran’s lay statements; and conducted an audiological examination. His puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 50 60 90 LEFT 45 60 80 85 90 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 84 percent in the left ear. The Veteran reported to the VA audiologist he has difficulty hearing in all situations and particularly in crowds. Upon conclusion of the examination, the VA examiner noted mixed hearing loss. However, she could not provide a medical opinion regarding etiology of the Veteran’s hearing loss without resulting to speculation. Specifically, she noted that due to mixed hearing loss in both ears, there was a need for a supplemental clarifying opinion. In April 2015, a clarifying opinion was issued by an additional a VA examiner. After reviewing the Veteran’s STRs and VA treatment records, the examiner noted the Veteran’s mixed conductive and sensorineural hearing loss in both ears and opined it more likely than not likely that the Veteran’s current mixed hearing loss is caused by a combination of factors. According to the examiner, “otosclerosis with incomplete closure of the air/bone gap following stapes surgery in each ear, presbycusis (the hearing loss that occurs with aging), and some contribution to the hearing loss at high frequencies from noise exposure during active duty military service” all contributed to the Veteran’s bilateral hearing loss. Because the Veteran’s bilateral hearing loss is multifactorial, the examiner could not attribute degrees of causation without resorting to speculation. See the April 2015 VA examination report. 1. Left Ear Hearing Loss In considering the evidence of record under the laws and regulations above, the Board finds that the Veteran is entitled to service connection for hearing loss in his left ear. First, the audiometric test results of record during the appeal period do show the Veteran has bilateral sensorineural hearing loss with auditory thresholds of 40 decibels or greater, or 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000. 38 C.F.R. § 3.385. Thus, the competent evidence of record establishes that the Veteran has bilateral hearing loss that meets the VA criteria for disability. While the Veteran’s MOS was supply, he received certifications for rifle and pistol sharpshooting. As such, the Board finds there was in-service exposure to acoustic trauma. Thus, the question in the current appeal is one of nexus. In his April 2016 Notice of Disagreement (NOD), the Veteran wrote that his hearing loss is from exposure to rifle fire, rocket launchers, hand grenades, rifle grenades, machine guns, and mortars. The Board has considered the Veteran’s statements and finds him competent to report his hearing loss symptoms and exposure to noise in service. Layno v. Brown, 6 Vet. App. 465 (1994). However, the determination of whether the Veteran’s current hearing loss is related to in-service noise exposure is a complex medical question that requires audiological expertise. Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316. The Board acknowledges that the March 2015 VA examination and April 2015 clarifying opinion could not provide an opinion regarding the etiology of the Veteran’s hearing loss without resorting to speculation. Both examiners noted the Veteran’s in-service noise exposure, prior medical history, and lay statements. Thus, the exact etiology of the Veteran’s current bilateral hearing loss cannot be known to a certainty. However, as set forth above, absolute certainty is not required in claims for VA benefits. Rather, under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert, 1 Vet. App. at 54. Given the examiners’ opinions that it is impossible to allocate the degree of hearing loss to the in-service noise exposure, such a conclusion cannot be made in this case. Thus, the overall evidence appears to be in relative equipoise as to whether the Veteran’s current left ear hearing loss is related to service. Resolving reasonable doubt in favor of the Veteran, service connection is warranted for left ear hearing loss. 38 U.S.C. § 5107(b). 2. Right Ear Hearing Loss Additional laws and regulations apply when there is evidence that a disability preexisted service. A veteran is presumed to be in sound condition when entering service, except for conditions “noted” on entrance or where clear and unmistakable evidence demonstrates that an injury or disease preexisted service, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Cotant v. Principi, 17 Vet. App. 116 (2003). Only such conditions as are recorded in entrance examination reports are considered to be “noted” for purposes of the presumption of soundness. 38 C.F.R. § 3.304 (b). If the disability is shown to be preexisting, it will be presumed to have been aggravated by service where there was an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). Some increase in the severity of the preexisting condition must be causally related to military service. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). At the outset, the Board notes the Veteran’s right ear was “noted” as defective upon entry. Consequently, the presumption of soundness does not apply to his right ear. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In this case, the April 2015 VA examiner opinion stated that the hearing loss experienced by the Veteran was due, in part, to the noise exposure during service. This implies that the increase in the Veteran’s right ear hearing loss was caused, in part by service, and not due to only the natural progression of the disease, therefore satisfying the criteria for service connection due to aggravation of the disability. The Board finds the April 2015 VA examiner opinion the most probative evidence of record. The examiner’s rationale is logical and well-reasoned, and she took into consideration the entire record, including the Veteran’s service and post-service treatment records, and the prior VA examinations. Therefore, the preponderance of the evidence of record appears to be in relative equipoise as to whether the Veteran’s current right ear hearing loss is related to service. Resolving reasonable doubt in favor of the Veteran, service aggravation is warranted for right ear hearing loss. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for tinnitus Likewise, the Veteran asserts that his bilateral tinnitus had its onset during service. The Veteran has indicated he is uncertain about the exact onset date of his tinnitus but reported intermittent ringing tinnitus in both ears for many years. As discussed above, the Veteran is presumed to have been exposed to noise during military service. He has reported ringing in his ears after shooting rifles and following loud charges going off next to him during training. See the March 2015 VA Examination and the October 2016 Statement in Support of Claim. The Board acknowledges the Veteran’s assertion that his tinnitus is related to military service. Again, as addressed above, the Veteran is competent to report that his tinnitus began during service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the determination of the origin of tinnitus is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition involves a pathological process that is not readily observable to a layperson. After examining the Veteran and reviewing the evidence of record, the March 2013 VA examiner was unable to provide an etiological opinion as to the Veteran’s bilateral tinnitus without resorting to speculation. The examiner based her opinion on a review of pertinent medical evidence and provided an explanation for her conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). After carefully considering the record on appeal, and affording the Veteran the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. Although the record does not support an award of service connection for tinnitus on a direct or presumptive basis, the Board finds that secondary service connection is warranted in light of the decision above awarding service connection for bilateral hearing loss. Furthermore, the Veteran’s bilateral hearing loss and tinnitus were both noted by VA examiners as multifactorial with no definitive single etiology. The Board notes that it is medically well established that tinnitus may occur as a symptom of sensorineural or noise induced hearing loss. See the Merck Manual, Sec. 7, Ch. 82, Approach to Patient with Ear Problems. As set forth above, the medical evidence of record reflects that the Veteran’s service-connected bilateral hearing loss is a result of his exposure to acoustic trauma during service. The Board notes that “high frequency tinnitus usually accompanies [noise-induced] hearing loss.” The Merck Manual, Section 7, Ch. 85, Inner Ear. Accordingly, given the grant of service connection for bilateral hearing loss and The Merck Manual indicating tinnitus may occur as a symptom of sensorineural hearing loss, and resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. C. Slaughter, Associate Counsel