Citation Nr: 18148755 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-29 965 DATE: November 8, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current disability of right ear hearing loss. 2. Resolving reasonable doubt in the Veteran’s favor, his left ear hearing loss is at least as likely as not related to in-service noise exposure. 3. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 1112, 1137, 5103, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1975 to October 1978. This case is on appeal before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A review of the record reflects that additional medical evidence was added subsequent to the May 2016 Statement of the Case (SOC). However, since none of this evidence relates to either of the issues on appeal, no further action is required. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks service connection for bilateral hearing loss and tinnitus, both of which he asserts are related to active service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of a chronic disease in service, there is required a 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 a condition noted during service is not shown to be chronic, then a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for certain chronic diseases, such as organic diseases of the nervous system, which include both sensorineural hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran alleges that both his bilateral hearing loss and tinnitus are related to events he experienced in service. Although the evidence of record fails to establish the existence of a current right ear hearing disability, it is in equipoise concerning the etiology of the Veteran’s left ear hearing loss. Thus, service connection for left ear hearing loss is granted, while service connection for right ear hearing loss is denied. Additionally, the evidence of record is in equipoise concerning the question of whether the Veteran’s tinnitus is related to in-service noise exposure. Thus, that appeal is also granted. I. Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss, which he claims was caused by exposure to artillery and small arms fire during service. The Veteran also asserts that the hearing protection offered during live fire exercises did not fit due to his unusually small ear canals. As such, it did not afford him a great deal of protection from the noise. See November 2014 notice of disagreement; see also May 2018 appellate brief. Impaired hearing will be considered to be a disability under the laws administered by the VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Id. at 159. Service treatment records include an audiogram with the October 1975 enlistment examination report, which shows the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 LEFT 5 5 5 0 The Veteran underwent audiological testing as part of his August 1978 separation examination. Puretone testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 5 10 LEFT 10 5 5 5 These results do not indicate a level of hearing loss in either ear sufficient to establish a disability under VA regulations at any time during service. Similarly, the rest of the August 1978 separation examination report makes no mention of any hearing difficulties. The record contains no further complaints of hearing difficulties or records of treatment until February 2014, when the Veteran underwent an audiological consultation with the VA. The Veteran complained of “sloshing” in his left ear, and asserted that he had difficulty hearing people during conservation and with background noise. The attending physician diagnosed the Veteran with bilateral sensorineural hearing loss, which she rated as moderate in the left ear and mild to moderate in the right. The attending physician also measured the Veteran’s speech recognition ability, which was 92 percent in both ears. However, since there is no indication that this test was issued using the Maryland CNC, it cannot be used for rating purposes. The Veteran was afforded a VA audiological examination in May 2014. Puretone testing results from that examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 15 25 20 LEFT 15 20 15 20 50 The VA examiner also found that the Veteran’s speech recognition ability (Maryland CNC word list) was 94 percent in each ear. The examiner reviewed the Veteran’s statements and claims file, noting his exposure to small arms and artillery fire during service. The examiner determined that the Veteran has sensorineural hearing loss in both ears; however, only the hearing loss in his left ear meets the requirements for a hearing loss disability under VA regulations. Nonetheless, the examiner opined that the Veteran’s bilateral hearing loss is less likely than not the result of his military service. This conclusion was based on audiological testing from October 1975 and August 1978, which revealed normal hearing in each ear and, in the examiner’s view, did not therefore show evidence of a threshold shift during service. After careful consideration of the claims file, the Board concludes that the evidence does not support the existence of a current right ear hearing disability as per VA regulations. However, the Board finds that the evidence is in equipoise concerning the etiology of the Veteran’s left ear hearing loss. At the Veteran’s most recent audiological examination in May 2014, he did not exhibit a puretone threshold of 40 decibels or greater at either 500, 1000, 2000, 3000, or 4000 Hz in his right ear. Similarly, the auditory thresholds in the Veteran’s right ear were not 26 decibels or greater for at least three of the aforementioned frequencies. Lastly, the Veteran’s speech discrimination score in his right ear was 94 percent. Given these results, the evidence of record does not establish the existence of a current hearing loss disability in the Veteran’s right ear under VA regulations. In assessing the claim for right ear hearing loss, the Board has considered the Veteran’s assertions that his hearing loss is related to service, and that he often has difficulties hearing with background noise and communicating with others. These lay statements have evidentiary value inasmuch as the Veteran is competent to report observable symptomatology, which includes difficulty hearing. Jandreau v. Nicholson, 492 F.3d 1372 (2007). However, on the issue of whether the Veteran had chronic hearing loss in service or in the decades following service, as defined under 38 C.F.R. § 3.385, lay assertions are not as credible as medical evidence addressing the issue. The development of a hearing loss disability concerns internal pathology beyond the capacity of a lay witness to observe. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Hearing loss under VA guidelines is determined by complex and technical audiological testing, not by subjective complaints. Therefore, the Veteran’s assertions are not medically significant with regard to whether an actual disability existed during or following service. Indeed, the lay evidence is not as persuasive as the medical evidence before the Board, which indicates a much later onset of chronic disability. The medical evidence in the claims file strongly contradicts the Veteran’s statements, showing that he did not develop a hearing loss disability until decades after service. As such, the preponderance of the evidence is against the Veteran’s lay assertions indicating an onset of right ear hearing loss during service, or in the year following service. The Board notes that the Veteran exhibited a puretone threshold of 50 decibels at 4000 Hz in his left ear during the May 2014 audiological examination, thus establishing the existence of a current left ear hearing disability. Although the VA examiner concluded that this condition is not related to the Veteran’s service, the Board deems this opinion inadequate. Indeed, the rationale offered by the VA examiner was that there was no auditory threshold shift during service because the Veteran demonstrated “normal” hearing at both his enlistment and separation examinations. While the Veteran’s hearing was shown to be in the normal range during the entirety of his time in service, the Board acknowledges that auditory threshold shifts may still occur even within the normal range of hearing. As such, given that the Veteran’s puretune threshold in his left ear went from 0 decibels at 4000 Hz in October 1975 to 5 decibels at 4000 Hz in August 1978, the Board finds that there is evidence of an auditory threshold shift in service. This evidence contrasts with the opinion of the VA examiner, who concluded that the Veteran’s current left ear hearing disability is not related to service because there was nothing to indicate an auditory threshold between October 1975 and August 1978. The Board therefore concludes that the evidence is in equipoise concerning the etiology of the Veteran’s left ear hearing loss, and awards service connection for this impairment. In summary, the evidence does not reveal the existence of a current right ear hearing disability under VA regulations. As such, service connection for right ear hearing loss is denied. Nonetheless, the evidence confirms the existence of a current left hear hearing disability. The Board finds that the evidence is in equipoise concerning the etiology of that condition, and rules in favor of the Veteran. Accordingly, service connection for left ear hearing loss is granted. II. Tinnitus The Veteran seeks service connection for tinnitus, which he claims was caused by noise exposure during active service. The Veteran asserts that he first noticed tinnitus shortly after separation in 1979, when the power was knocked out by a hurricane in his hometown. According to the Veteran, this made the nights very quiet, which caused him to become acutely aware of his tinnitus. The Veteran claims that his tinnitus has worsened significantly over the years. See November 2014 notice of disagreement. For chronic diseases like tinnitus, the second and third elements of the service connection analysis may be established by showing continuity of symptomatology. 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1331. Continuity of symptomatology may be shown by demonstrating “(1) that a condition was ‘noted’ during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” See Barr, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Veteran’s service treatment records are devoid of any indications of tinnitus or other hearing abnormalities. Indeed, his August 1978 separation examination does not reflect complaints of tinnitus or suggest any other audiological abnormalities. There is no further indication of tinnitus in the record until February 2014, when the Veteran underwent an audiological consultation with the VA. The Veteran complained that his tinnitus was so severe that it kept him up at night; he also expressed interest in buying a masker to help with this problem. The Veteran was afforded a VA audiological examination in May 2014, where he indicated that his tinnitus began with a gradual onset. However, at the time of the examination, the Veteran described it as a buzzing or ringing sound with 10/10 volume. Nonetheless, the examiner noted that the Veteran did not experience impaired hearing or significant threshold shifts in either ear during service. Without hearing loss or threshold change, there is no evidence of a noise injury. As such, in order to opine that the Veteran’s tinnitus was caused by military service, the examiner would have to accept the scientifically unsubstantiated premise that his tinnitus is related to some undiagnosed, latent noise injury. The examiner stated that such an opinion would directly contradict the objective evidence reflected in the audiograms, and therefore concluded that the Veteran’s tinnitus is less likely than not related to in-service noise exposure. After careful consideration of the claims file, the Board finds the evidence is in equipoise concerning the etiology of the Veteran’s tinnitus. The Board notes that the opinion of the May 2014 VA audiological examiner, which is the only statement from a medical professional in the claims file addressing the etiology of the Veteran’s tinnitus, found that this condition is less likely than not related to his service. This conclusion was based on the lack of a significant threshold change in either ear during service. However, as noted in the previous section, the Board has found that there is evidence of a significant threshold shift during service, at least in his left ear. As such, the Board finds that the opinion of the May 2014 VA audiological examiner is inconsistent with the evidence of record. Nonetheless, the Veteran still bears the burden of proof to substantiate every element of his claim for service connection, including nexus. Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997). The Board notes that the Veteran is competent to provide evidence regarding matters that can be perceived by the senses and, in some instances, provide an opinion as to the etiology of such conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Tinnitus is a common malady, the symptoms of which lay persons may identify. Therefore, the Board accepts the testimony of the Veteran, affirming that his tinnitus began during service. Given the evidence showing the existence of a current disability that manifested during service, the Board finds that upon resolution of reasonable doubt in favor of the Veteran, the evidence is in relative equipoise as to whether the Veteran’s tinnitus satisfies the requirements of the 3-part test set forth in Hickson. As such, he is entitled to service connection for tinnitus. (CONTINUED ON NEXT PAGE) III. Conclusion In conclusion, the Board finds that the evidence of record does not establish the existence of a right ear hearing disability as per VA regulations. Although the Board acknowledges the Veteran’s statements that he has had right ear hearing loss since service, the majority of the evidence is inconsistent with these assertions. Since the preponderance of the evidence is against this claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49, 58 (1991). Thus, the Veteran’s claim for service connection for right ear hearing loss is denied. Nonetheless, the Board concludes that the evidence is in equipoise concerning the etiology of the Veteran’s left ear hearing loss and tinnitus. Therefore, the Veteran’s claims for service connection for left ear hearing loss and tinnitus are granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel