Citation Nr: 20004812 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-02 032 DATE: January 21, 2020 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, which clearly and unmistakably preexisted service, was aggravated beyond its normal progression by his active duty service. 2. The Veteran’s right hearing loss had its onset during active service. 3. The Veteran’s tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left hearing loss are met. 38 U.S.C. §§ 1110, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.306, 3.385. 2. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a), 3.385. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1988 to April 1992, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) office. In October 2019, the Veteran testified before the undersigned. Service Connection The Veteran asserts that his hearing loss and tinnitus are related to his service in Southwest Asia. See December 2014 VA Form 21-526EZ, February 2016 Veteran lay statement, and October 2019 Board Hearing Transcript at 5. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted where there is continuity of symptomatology linking a current chronic disease and a chronic disease in service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also 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”).] 1. Entitlement to service connection for bilateral hearing loss is granted. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone 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). Impaired hearing will be considered to be 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 three 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. A veteran shall be presumed 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. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active 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. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preexisting disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). Here, the Veteran has a current diagnosis of bilateral hearing loss pursuant to 38 C.F.R. § 3.385. See April 2015 VA examination report. Thus, element one of service connection is met. The Veteran’s military occupation specialty was Indirect Fire Infantryman, which has a high probability of military noise exposure. See DD Form 214. He is also in receipt of the hand grenade and 81 mm mortar expert badges. Id. Additionally, the Veteran reports that he regularly fired an M-16 and was a gunner in a mechanized tank. See October 2019 Board Hearing Transcript at 2-3. Accordingly, element two of service connection is met. Thus, the crux of this case is whether the Veteran’s current hearing loss was proximately caused by or is a continuation of an in-service noise injury. In that regard, the Veteran’s March 1988 enlistment audiogram showed puretone thresholds for his right ear at 500, 1000, 2000, 3000, 4000, and 6000 Hz to be 5, 5, 0, 0, 35, and 20 dB, respectively. Pursuant to 38 C.F.R. § 3.385, the Veteran did not have hearing loss at entrance in his right ear, and is therefore considered sound at entry. See McKinney v. McDonald, 28 Vet. App. 15 (2016) (because the degree of hearing loss noted on an entrance examination did not meet VA’s definition of a “disability” for hearing loss under § 3.385, the presumption of soundness under 38 U.S.C. § 1111 attaches). At the time of his discharge, the Veteran’s right ear audiogram showed puretone thresholds at 500, 1000, 2000, 3000, 4000, and 6000 Hz of 5, 5, 0, 0, 40, and 10 dB in the right ear. Thus, the Veteran had hearing loss for VA purposes at the time of his discharge, his hearing loss was diagnosed while on active duty, and service connection for his right ear is established on that basis alone. 38 C.F.R. § 3.303. The Board notes that the April 2015 VA examiner did not address the Veteran’s in-service diagnosis of hearing loss and his December 2015 addendum opinion is thus based on a factual inaccuracy and of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Regarding the Veteran’s left ear, his March 1988 enlistment audiogram showed puretone thresholds for his left ear at 500, 1000, 2000, 3000, 4000, and 6000 Hz to be 10, 5, 0, 45, 45, and 35 dB, respectively. Thus, the Veteran had hearing loss in his left ear pursuant to 38 C.F.R. § 3.385 and was not sound at the time of his entry onto active duty. 38 U.S.C. § 1111; McKinney, sura. Moreover, a September 1990 audiogram showed the puretone threshold for the Veteran’s left ear to be 50 at 4000Hz, a clear indication of a worsening on active duty. Thus, the presumption of aggravation is triggered, and the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The April 2015 examiner concluded that left ear hearing loss was “not permanently aggravated” by active service, as there was a “slight improvement” in hearing at separation. The examiner did not employ the correct legal standard, did not explain what facts were medically noteworthy, or more notably why the Veteran’s audiogram documenting the Veteran’s left ear puretone threshold of 50 at 4000Hz was demonstrative of an improvement of the Veteran’s hearing loss. Thus, the opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”). Thus, as the presumption of aggravation has not been rebutted, service connection for left ear hearing loss is established. 2. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his tinnitus is due to his active service. See October 2019 Board Hearing Transcript at 2-3. He reported that that his tinnitus began during his active duty service while serving in Southwest Asia firing weapons and that he continues to experience tinnitus. Id. Tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Board notes the April 2015 audiological examiner opined that the Veteran’s tinnitus did not have its onset in service. The examiner based his opinion on the fact that tinnitus is a symptom of hearing loss unrelated to service. However, as noted above, the Veteran’s right ear was sound at entry and during active duty met the requirements for hearing loss pursuant to 38 C.F.R. § 3.385, and the Board has related the Veteran’s hearing loss to service in the instant decision. Thus, the April 2015 VA medical examiner’s opinion against the claim is of no probative value. See Reonal, supra. Here, the Board finds the Veteran’s consistent statements as to the in-service onset of tinnitus credible. Accordingly, as the only probative evidence is in favor of the claim, the Veteran’s claim for service connection for tinnitus is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.