Citation Nr: 20072864 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 15-00 199 DATE: November 12, 2020 ORDER Service connection for right ear hearing loss is granted. Service connection for left ear hearing loss, to include as secondary to service-connected tinnitus, is denied. FINDING OF FACT 1. Resolving any doubt in the Veteran’s favor, right ear hearing loss was caused by in-service noise exposure. 2. The Veteran’s left ear hearing loss did not manifest in service, was not continuous since service, was not shown to a compensable degree within one year of separation from service, was not aggravated beyond its natural progression by service-connected disability, and is not etiologically related to his active duty service. CONCLUSION OF LAW 1. The criteria to establish service connection for right ear hearing loss have been approximated. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.385. 2. The criteria to establish service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from June 2003 through June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In May 2019, the Board remanded the appeal for additional development. The RO was directed to return the file to a June 2013 VA examiner to obtain an addendum opinion regarding whether the Veteran’s left ear hearing loss was caused by in-service noise exposure or service-connected tinnitus or bilateral hearing loss was aggravated by service-connected tinnitus. The development was completed. There has been substantial compliance with the remand directives and the matters again are before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) 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’ - the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disorders, listed as “chronic” in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hearing loss, as an organic disease of the nervous system, constitutes a “chronic” disease listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Additionally, a veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders “noted” at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. Only such conditions that are recorded in the examination reports are to be considered as “noted,” and history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304. As discussed in detail below, the Veteran’s pre-existing right ear hearing loss was noted at service entry. Therefore, service connection may only be granted based on in-service aggravation of that condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing condition will be presumed to have been aggravated in 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 progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306; Wagner at 1096. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. 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, 492 F.3d 1372, 1377. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385, which provides that impaired hearing will be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran contends that he has bilateral hearing loss due to service. Alternatively, he contends that his bilateral hearing loss is due to or aggravated by his service-connected tinnitus. A February 2002 audiogram showed normal hearing bilaterally. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 35 35 LEFT 15 15 20 20 20 The Veteran’s June 2003 report of medical examination at enlistment showed normal hearing bilaterally. His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 35 25 LEFT 15 15 20 20 20 A May 2005 reference audiogram showed normal left ear hearing and impaired right ear hearing. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 30 40 LEFT 15 10 15 20 25 An April 2006 hearing conservation data showed normal hearing bilaterally. The Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 30 35 LEFT 15 10 15 20 25 On the authorized audiological evaluation in June 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 40 40 LEFT 20 25 30 30 30 Speech audiometry revealed speech recognition ability of 94 percent in both ears using the Maryland CNC Speech Discrimination Test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, was 31 for the right ear and 29 for the left ear. The audiologist opined that the Veteran had sensorineural hearing loss (in the frequency range of 500-4000 hertz) bilaterally. On the authorized audiological evaluation in December 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 50 50 LEFT 15 20 25 30 30 Speech audiometry revealed speech recognition ability of 100 percent in both ears using the Maryland CNC Speech Discrimination Test. The average pure tone thresholds of 1000, 2000, 3000, and 4000 Hz, rounded to the nearest whole number, was 39 for the right ear and 26 for the left ear. The audiologist opined that the Veteran had sensorineural hearing loss (in the frequency range of 500 to 4000 hertz) in both ears. However, the audiologist noted that the Veteran may have had hearing loss at a level that is not considered to be a disability for VA purposes, which could occur when the auditory thresholds are greater than 25 decibels at one or more frequencies in the 500 to 4000 hertz range. Left Ear Hearing Loss While the Veteran has left ear hearing loss, the preponderance of the evidence is against finding that the Veteran’s left ear hearing loss is proximately due to or the result of or aggravated by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). A December 2019 VA audiologist opined that it is less as likely as not that the Veteran’s left ear hearing loss is proximately due to or caused by his service-connected tinnitus. The audiologist explained that a fundamental understanding of the underlying mechanisms of tinnitus and its relation to noise-induced hearing loss was that inner ear exposure to acoustic trauma may cause hearing loss and that tinnitus can be one of the symptoms associated with hearing loss/acoustic trauma. The audiologist explained that the Veteran’s service-connected diagnosis is tinnitus. The audiologist further explained that based on the fundamental understanding of the relationship between tinnitus and hearing loss, the Veteran’s hearing loss is not at least as likely as not aggravated beyond its natural progression by his tinnitus. The audiologist explained that tinnitus is a symptom of hearing loss that may be aggravated by hearing loss/acoustic trauma but not the converse. The audiologist’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his left ear hearing loss is proximately due to or the result of/aggravated by a service-connected disability, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical education. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2019 VA audiologist. Service connection for left ear hearing loss may still be granted on a presumptive basis as a chronic disease. While the Veteran has left ear hearing loss, which is a chronic disease under 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show no indication of the Veteran’s hearing loss until January 2013. See January 2013 Mental Health Initial Evaluation Note. While the Veteran is competent to report having experienced symptoms of left ear hearing loss since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hearing loss. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no objective medical evidence establishing that the Veteran’s left ear hearing loss was chronic in service or manifest to a compensable degree in service or within a presumptive period and continuity of symptomatology is not established. Therefore, the preponderance of the evidence is against a finding of service connection on a presumptive basis. Service connection for left ear hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s left ear hearing loss and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. As to the question of an in-service event, the Veteran’s Report of Separation from the Armed Forces (DD Form 214) reflects that his military occupational specialty (MOS) was infantryman. The law provides that due consideration shall be given to the places, types and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). As an infantryman, the Veteran would likely have been exposed to high levels of noise. His noise exposure during combat is also presumed under 38 U.S.C. § 1154(b). Therefore, his noise exposure is presumed. However, the questions of whether the Veteran has hearing loss, and if so whether that hearing loss was caused by acoustic trauma during service requires a medical opinion. The June 2013 VA audiologist opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The audiologist explained that audiometric testing performed at the time of induction, during active duty, and at time of discharge revealed normal hearing for the left ear. The audiologist further explained that a comparison between those test results indicates that the Veteran experienced no significant changes in hearing during active duty service. The audiologist explained that there is no known scientific basis for delayed onset of noise induced hearing loss. The December 2019 VA audiologist opined that the Veteran’s hearing impairment was less likely as not incurred in or caused by the claimed in-service injury, event, or illness. The audiologist explained that the Veteran served in combat in the Iraq War. The audiologist further noted that the Veteran’s June 2003 enlistment examination showed normal hearing in the left ear and that hearing conservation testing performed prior to separation in April 2006 indicated that hearing in the left ear remained within normal limits and was unchanged when compared to his entrance examination. The audiologist explained that although the Veteran served in combat and had the MOS of infantryman, which had a high probability of hazardous noise exposure, there was no significant permanent shift in hearing thresholds from entrance to separation, until the time of the claim. The audiologist further explained that auditory damage and hearing loss are not conceded based on noise exposure alone. The audiologists’ opinions are probative, because they are based on an accurate medical history and provide an explanation that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA treatment records are silent regarding hearing loss until January 2013, 7 years after the Veteran’s separation from service. While the Veteran believes his left ear hearing loss is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau, supra. Consequently, the Board gives more probative weight to the June 2013 and December 2019 VA audiologists’ opinions. Therefore, the preponderance of the evidence is against a finding of a nexus and service connection on a direct basis is not warranted. Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran’s left ear hearing loss is causally related to his service, manifested within an applicable presumptive period, or was chronic in service. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For these reasons, the claim is denied. Right Ear Hearing Loss The Board will not assign any probative value to the June 2013 and December 2019 VA audiologists’ opinions regarding the Veteran’s right ear hearing loss. The audiologists did not consider the May 2005 reference audiogram conducted between the Veteran’s enlistment and separation from service, which indicate in-service right ear hearing loss under VA criteria. 38 C.F.R. § 3.385. Rather, the additional evidence is sufficient to show a nexus via a continuity of symptomatology for bilateral hearing loss. 38 C.F.R. §§ 3.303(b), 3.309. STRs include a reference audiogram noting hearing loss in the right ear. See May 2005 reference audiogram; 38 C.F.R. § 3.385. The June 2013 and December 2019 VA audiograms establish current hearing loss for the right ear. There is no evidence suggesting an alternative intercurrent cause for hearing loss. Although there is a time lapse from service, the Board resolves reasonable doubt to find the above evidence sufficient to show a continuity of symptomatology for bilateral hearing loss from conceded military noise exposure. In conclusion, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s right ear hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. McLendon, 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.