Citation Nr: 21000228 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 07-26 542 DATE: January 4, 2021 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 bilateral hearing loss was at least as likely as not aggravated during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began as the result of acoustic trauma during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1983 to April 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2007 rating decision. The Veteran initially submitted his request to reopen his claim for bilateral hearing loss and claim for service connection for tinnitus in June 2006. The Veteran was provided a Board hearing in March 2008 with a Veterans Law Judge (VLJ) other than the undersigned. In July 2010, the Board reopened the Veteran’s claim for service connection for bilateral hearing loss, and the matters on appeal were remanded for additional development. Following this remand, the claims were denied in August 2011; however, this denial was vacated in June 2014 pursuant to a settlement agreement in National Org. of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013) and a new hearing was offered to correct any potential due process errors relating to the March 2008 hearing. After a September 2015 remand, the Veteran was provided a new hearing in December 2015 before the undersigned. The matters on appeal were remanded for additional development in January 2016, then denied in an April 2018 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court issued a memorandum decision that vacated the Board’s denial of service connection for bilateral hearing loss and tinnitus and remanded the claims for further development. Since that time, this matter has been before the Board in September 2019 and August 2020, when it was remanded for additional development. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including hearing loss and tinnitus, will be granted service connection on a presumptive basis if there is evidence they manifested within a year of separation from service. 38 C.F.R. §§ 3.307 (a), 3.309(a). Alternatively, for such chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (section 3.303(b) only applies to the chronic disabilities listed in 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a)); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding section 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[ ] of the nervous system’“). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends his bilateral hearing loss disability, which existed prior to service, was aggravated by noise exposure during active service. Generally, a veteran is presumed to have been 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 or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In this case, the Veteran’s April 1983 entrance examination shows he had a hearing loss disability noted at entry to service based on hearing thresholds of 40 decibels or greater at 3000 and 4000 Hertz measured in each ear. See 38 C.F.R. § 3.385. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). In this case, the Veteran’s separation exam shows threshold shifts of 5 to 10 decibels across multiple frequencies, with greater shifts in the left ear. These shifts were adequate to warrant a change in the Veteran’s profile from H-2 to H-3, denoting that the Veteran was no longer fit for service. Despite this, the separation examination report indicates there was no change in the Veteran’s hearing loss from his entrance physical, and in opinions from December 2006, August 2010, November 2019, and August 2020, VA examiners have found there was no significant shift in the Veteran’s hearing. On these bases, the examiners opined there was no evidence of an increase in the severity of the Veteran’s condition during service. In the November 2019 and August 2020 VA examiner opinions after the March 2019 court remand, the examiner provided additional explanation regarding the basis for determining there was no significant shift in the Veteran’s hearing, stating that the maximum 10 decibel shift in hearing in the Veteran’s left ear, which led to the change in the Veteran’s profile from H-2 to H-3, was not considered significant based on Occupational Safety and Health Administration (OSHA) standards or National Institute of Occupational Safety and Health (NIOSH) criteria. She further explained that the requirements in these standards reflect the effects of variables such as earphone placement, earwax occlusion, examiner experience, and other testing factors unrelated to the patient’s hearing on the reliability of tests, referred to as test/retest reliability. Absent a showing a showing of an increase of 30 decibels or more total across the 2000, 3000, and 4000 Hertz thresholds under OSHA standards, or a shift of 15 decibels or more in a single frequency from 500 to 6000 Hertz under the NIOSH criteria, a shift in thresholds compared between two tests is not considered significant. In this case, the Veteran’s left ear showed the greatest shift between entry and separation, with a total 25 decibel shift combined in the 2000, 3000, and 4000 Hertz range, and no shift greater than 10 decibels at any given frequency from 500 to 6000 Hertz. While acknowledging the examiner’s thorough explanation and assessments under the OSHA and NIOSH standards provided, the Board notes that the determination of whether the Veteran has met the burden of showing that his condition worsened during service does not require that he show a significant shift in his hearing thresholds under any defined standard. Any signs of worsening during service meet this burden and trigger the presumption that the Veteran’s condition was aggravated by military service. As acknowledged by the VA examiner in her opinions, the 10 decibel shift in the Veteran’s left ear hearing between entry to service and separation was adequate for the Veteran to meet the criteria for an H-3 profile on his separation exam versus an H-2 profile at entry. Furthermore, a private otolaryngologist provided an affidavit in July 2016 acknowledging the Veteran’s hearing loss at entry to service and opining that the increased thresholds shown at separation were likely due to acoustic trauma reported by the Veteran. The Board finds the Veteran’s service records and this private medical opinion to be evidence the Veteran’s condition worsened during military service. As the evidence of record shows that there was an increase in the severity of the Veteran’s bilateral hearing loss during service, the presumption of aggravation attaches. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that any increase was the result of natural progression of the condition. 38 C.F.R. § 3.306. In this case, there is no evidence that would rise to the level of showing that the Veteran’s increase in severity of hearing was clearly and unmistakably due to the natural progress of the condition. Therefore, the presumption of aggravation has not been rebutted and service connection based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. 2. Entitlement to service connection for tinnitus The Veteran contends his tinnitus began during active military service and has continued since. Unlike the Veteran’s hearing loss disability, which was documented in his April 1983 audiometry test at entry to service, there is no notation in his entrance examination report documenting that he experienced tinnitus prior to military service. The Board therefore presumes the Veteran did not have a preexisting tinnitus disability at entry to service. See 38 C.F.R. § 3.304(b). Tinnitus is a condition capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that “ringing in the ears is capable of lay observation” and, as such, a veteran is competent to testify as to that symptom). Therefore, the Veteran is competent to describe his tinnitus symptomatology in service and after service. The Veteran has been somewhat inconsistent in his reports of the initial onset of his tinnitus symptoms. He initially testified in his March 2008 Board hearing that his tinnitus began during service in 1983. In his December 2015 hearing testimony, the Veteran was unsure of the precise onset of his tinnitus, but estimated it began around 1984. The Veteran likewise reported onset of his tinnitus around 1984 at his November 2019 VA examination. Contrary to these reports, the Veteran reported at an August 2010 VA examination that he first noticed his tinnitus symptoms in the early- to mid-1990s. Despite some inconsistent reports regarding the initial onset of his tinnitus symptoms, the medical opinions of record from both VA examiners and private physicians have indicated that his tinnitus disability is related to his service-connected hearing loss disability. August 2010 and November 2019 VA examiners each opined that the Veteran’s tinnitus is at least as likely as not related to his hearing loss, and a private otolaryngologist stated in a July 2016 affidavit that the Veteran reported onset of tinnitus during service, apparently as the result of acoustic trauma while on active duty. Based on these reports, the Board finds the evidence is at least in relative equipoise regarding whether the Veteran’s tinnitus had its onset during service as the result of acoustic trauma. The Veteran is competent to report the symptoms of tinnitus, and he reported these symptoms began during service. Though the Veteran has not been able to identify an exact onset date or particular event that caused the symptoms, he has been fairly consistent in reporting that his symptoms began during service. Even if his tinnitus began after service, the medical opinions of record from both VA and private physicians support finding his tinnitus is related to his now service-connected hearing loss disability. Accordingly, the Board finds that entitlement to service connection for tinnitus is warranted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.