Citation Nr: 20006582 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 15-06 202A DATE: January 28, 2020 ORDER Entitlement to service connection for left hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss is related to in-service noise exposure. 2. The Veteran’s tinnitus is related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from October 1966 to October 1968. He served during the Vietnam War era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that review of the record shows that the Veteran submitted a Statement in Support of Claim on October 23, 2019, in which he stated that he was not provided “proper due process” in a prior appeal and asserted “clear and unmistakable error” in the processing of that appeal. However, the Veteran did not sufficiently identify the rating decision or the issues with which he disagreed. 38 C.F.R. § 20.201 (2018). If the Veteran wishes to attack a prior decision on the basis of CUE, he should file a formal claim identifying the decision that contains CUE and the actions of the RO that constituted CUE. Service Connection To establish service connection for a claimed disability, three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for any disease initially diagnosed after service when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection will be presumed for certain chronic diseases, including hearing loss, if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for left ear hearing loss Because there is no indication that the Veteran’s hearing loss manifested within one year of service, service connection is not available on a presumptive basis. The first prong in the service connection analysis is whether the Veteran has a current hearing loss disability. The January 2014 rating decision denied entitlement to service connection for bilateral hearing loss. Service connection for the right ear was denied because there is no evidence that the Veteran currently had a hearing loss for VA purposes. Service connection for the left ear was denied because the Veteran’s hearing loss has not been linked to service. Service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in October 2013. The VA examiner noted an asymmetrical hearing loss in the left ear of 20 dB or greater (by air conduction). Audiometric testing indicated the Veteran’s left ear with 98 percent discrimination. Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz) is 30 with a 25 dB loss at 1000 Hz, a 30 dB loss at 2000Hz, a 35 dB loss at 3000 Hz, and a 45 dB loss at 4000 Hz. The average decibel loss is 34 in the left ear. The right ear shows a speech discrimination of 100 percent. Decibel (dB) loss at the puretone threshold of 500 Hertz (Hz) is 20 with a 25 dB loss at 1000 Hz, a 30 dB loss at 2000 Hz, a 25 dB loss at 3000 Hz, and a 35 dB loss at 4000 Hz. The average decibel loss is 29 in the right ear. Based on the Veteran’s audiometric test results noted in the 2013 VA examination, the Veteran did not meet the criteria for a hearing loss disability in his right ear for VA purposes. The Board has determined to remand the issue of right ear hearing loss, which is discussed more fully in the remand section of this decision. Based on the Veteran’s audiometric test results noted in the 2013 VA examination, the Veteran has a current left ear hearing loss disability, thereby meeting the first element of service connection. As to the second element of service connection, in-service incurrence, the 2013 examiner notes that the Veteran’s Military Occupational Specialty (MOS) was supply clerk. The Veteran participated in combat training but did not participate in combat. He fired weapons with his right hand and did not use any hearing protection. In a statement provided in February 2015, the Veteran reported that although his MOS was supply clerk, he worked supply in the motor pool, supplying all the motor vehicles that were worked on in the shop, including trucks of all sizes, tank motors, jeeps, and heavy equipment. The Veteran indicated that he supplied parts and worked on vehicles and drove the trucks, thus he was continuously exposed to loud noises from heavy equipment. He stated that he was exposed to continuous loud noises in service for 17 to 18 months. The Board notes that the Veteran’s statements about continuous loud noise exposure are supported by the circumstances of his service and finds his statements credible. As the Veteran was exposed to loud and continuous noise during service, the second element of service connection is met. As to the final element required to for service connection, a nexus between the in-service incurrence and the Veteran’s current disability, although the Veteran has a hearing loss in his left ear for VA purposes, the 2013 examiner found no medical link between his hearing loss and his service based on no evidence of hearing loss at time of separation from military service. Service treatment records contain no treatment, complaints or diagnosis of hearing loss. Although hearing loss is not shown in-service, acoustic trauma or military noise exposure may constitute injury of the ear. The Veteran may establish entitlement to service connection by submitting evidence that his hearing loss disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). In a Notice of Disagreement dated June 2014, the Veteran stated that his hearing loss started in the motor pool in service, as all sorts of engines were worked on, including trucks, jeeps, and tanks as well as diesel engines and power tools. The Veteran contends that his hearing loss started in the army as a result of that continuous noise exposure. He stated that as a fireman post-service, aside from the times he was actually on a run with a siren, approximately once per week, the job conditions did not cause excessive noise. In any event, he stated that ear protection was mandatory in the fire department. By contrast, during service, the noise in the motor pool was loud and continuous and no hearing protection was provided or used by the Veteran, as reported in his VA examination. The VA examiner found that it is less likely than not (less than 50 percent probability) that the Veteran’s hearing loss is due to military noise exposure, providing the rationale that there was not any evidence of hearing loss at time of separation from military service. The Board notes that service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran’s hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and medical evidence sufficient to attribute that disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that although hearing loss was not shown in-service, acoustic trauma or military noise exposure may constitute injury of the ear. Here, the evidence of record shows repeated noise exposure to engine noises from various machines, tools, and vehicles ranging from jeeps to tanks. No hearing protection was shown. The Veteran provided lay testimony that he experienced hearing loss in service. Generally, the degree of probative value attributed to a medical opinion issued by a VA or private treatment provider takes into account certain factors, including the opinion’s thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444 (2000). The analysis also includes whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999). The Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Board assigns the VA examiner’s negative opinion low probative value as the examiner placed dispositive weight on the lack of any evidence of left ear hearing loss at time of separation from military service. The examiner did not adequately address other evidence, including the Veteran’s reports of symptoms and history, and the circumstances as his service, most significantly that his MOS as supply to the motor pool exposed him to continuous loud noise from large engines over a period of 17 to 18 months. 38 C.F.R. § 4.2. Considering all of the evidence of record, including the fact that as a disease of the nervous system such as hearing loss can be linked to service by way of credible statements of continuity of symptomatology, the Board finds that the evidence is at least in relative equipoise and it is at least as likely as not that the Veteran’s left ear hearing loss is proximately caused by in-service noise exposure. Applying the benefit of the doubt doctrine, service connection for left ear hearing loss is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus Because there is no indication that the Veteran’s hearing loss manifested within one year of service, service connection is not available on a presumptive basis. The 2013 VA examiner found it is less likely than not (less than 50% probability) that the Veteran’s tinnitus was caused by or a result of military noise exposure. The examiner noted that the Veteran reported that he noticed the ringing in his ears when he was a firefighter, after service. The Veteran also stated that he first noticed the ringing in his ears in 1967 when he was exposed to loud tanks and trucks, and grenade launchers without hearing protection. The Board notes that these statements do not contradict one another. The Veteran’s statement that the Veteran noticed the ringing in his ears while working as a firefighter post-service does not forestall a finding that he noticed ringing in his ears in 1967 as a result of the continuous loud engine noise exposure in service. He also stated that ear protection was mandatory when he worked as a firefighter and the work environment was not that noisy unless he was actually on a run with a siren, which occurred approximately once per week. In providing the negative opinion, the examiner reasoned that the Veteran reported that hearing protection was not always required during his post-service employment as a firefighter and that he noticed the ringing while working in the fire department. However, hearing protection was available to the Veteran in his post-service employment as a firefighter, while no hearing protection was provided to the Veteran when he served in the Army and was exposed to loud and continuous noise in the motor pool. In his NOD in 2014, the Veteran stated that his tinnitus began during service due to his exposure to continuous loud engine noise in the motor pool. He stated he was repeatedly exposed to loud noise from heavy equipment for 17 to 18 months in service without hearing protection. A medical opinion based solely on the absence of documentation in the record is inadequate if it does not take into account the Veteran’s competent lay statements regarding symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). The VA examiner provided little or no discussion of the Veteran’s statements and evidence concerning his symptoms in-service or continuing thereafter. The VA examiner did not adequately address the Veteran’s significant noise exposure during his service as a supply clerk in a motor pool in the context of forming his opinion that the Veteran’s tinnitus is not related to service. The examiner failed to adequately consider material evidence favorable to the claim. The asserted lack of evidence does not unilaterally outweigh the Veteran’s competent and credible testimony. Due to the inadequacies in the VA exam, the Board assigns a low probative value to the examiner’s opinion. Tinnitus is a chronic disease afforded a relaxed standard where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Tinnitus is a disorder uniquely discernable by the senses. The Board finds the Veteran competent and credible with respect to his observable symptoms of tinnitus. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) A layperson is considered 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. Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Veteran’s statements regarding in service noise exposure are consistent with the circumstances of the Veteran’s service and his personnel records. The Board finds the Veteran competent and credible as to his testimony regarding symptoms and noise exposure which precipitated his tinnitus, which continues to the present day, assigning high probative value to his statements. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that the criteria for entitlement to service connection for tinnitus have been met and that service connection for tinnitus is also warranted. 38 U.S.C. § §1101, 5107(b); 38 C.F.R. § 3.102, 3.303; Gilbert v. Derwinski 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran’s last VA examination for bilateral hearing loss was in October 2013 and at that time, the results were close to meeting the criteria necessary for hearing loss disability for VA benefits purposes. The Board therefore finds that this matter should be remanded to afford the Veteran a new, current examination to determine whether he satisfies the criteria for right ear hearing loss. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of any right ear hearing loss. If right ear hearing loss is diagnosed, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran’s right ear hearing loss is related to his in-service noise exposure. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.