Citation Nr: 21000384 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-47 508 DATE: January 5, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss is etiologically related to his active military service. 2. The Veteran’s tinnitus is etiologically related to his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385. 2. The criteria for service connection for tinnitus has been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1988 until his honorable discharge in July 1992. This case has a unique procedural history, which must be addressed to adjudicate the claims properly. In May 2012, the Veteran filed a claim for service connection for bilateral hearing loss and tinnitus. He presented for a VA audiological examination in April 2013. In August 2013, the Los Angeles, California, Regional Office (RO) of the United States Department of Veterans Affairs (VA) issued a rating decision granting service connection for tinnitus and right ear hearing loss but denying service connection for left ear hearing loss. In September 2013, the same RO issued another rating decision denying service connection for bilateral hearing loss and tinnitus. The August 2013 rating decision and codesheet were not signed by the adjudicative officer nor is there a VA notification letter within the Veteran’s claims file associated with the August 2013 rating decision. The RO sent a VA notification letter to the Veteran informing him only of the September 2013 rating decision. Based on that correspondence, the Veteran filed a timely notice of disagreement. The RO issued a statement of the case (SOC) in August 2016, which indicated the Veteran’s claim for service connection for tinnitus was already granted and rated 10-percent disabling as of May 14, 2012. The RO thus continued the 10-percent rating and continued denial of service connection for bilateral hearing loss. (Obviously, something is amiss at this point.) The Veteran filed a timely appeal to the Board based on the August 2016 SOC. In December 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. Before the hearing began, the Veteran, his representative, and the undersigned VLJ discussed whether the Veteran was appealing his tinnitus claim, which the parties understood was previously granted and rated at 10 percent. The consensus was that service connection had been granted for tinnitus and a 10-percent disability rating had been assigned by the RO in the August 2013 rating decision, but the RO failed to implement the disability rating following service connection. As such, the Veteran withdrew his claim on appeal as it related to tinnitus. The hearing then proceeded. During the hearing, the undersigned held the record open for 90 days to allow for the submission of additional evidence; however, no additional evidence was added to the record within that time period. In an April 2020 decision, the Board determined that, after closer review of the August 2013 rating decision, it was never a valid decision because it was not signed, and no notification letter was sent to the Veteran regarding the rating decision. Accordingly, the Board denied service connection for left ear hearing loss and remanded the case to the RO for further development as to the Veteran’s claims for service connection for right ear hearing loss and tinnitus. Specifically, the Board directed the RO to readjudicate the Veteran’s claims for service connection for right ear hearing loss and tinnitus. In that decision, the Board also remanded five other claims for service connection that were on appeal at that time but are no longer the subject of this case as they were subsequently granted by the RO after remand. In an October 2020 supplemental statement of the case (SSOC), the RO denied the Veteran’s claims for service connection for right ear hearing loss and tinnitus. Although the Board believes the Veteran should have been afforded a second VA examination with respect to his right ear hearing loss and tinnitus, the Board finds no prejudice to the Veteran because the Board is granting his claims for service connection in full. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing harmless error). Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also 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). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. 1. Entitlement to service connection for right ear hearing loss As to the first element, a current disability, for VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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 underwent an April 2013 VA audiology examination. The examiner reported that the Veteran’s score on the speech discrimination test, which utilized the Maryland CNC word list, was 90%. Absent evidence to the contrary, the Board finds the August 2013 VA examiner was competent to conduct and report the Veteran’s testing. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds the examiner is credible and the results of the examination probative. Buchanan, 451 F.3d at 1337. Therefore, the first element is satisfied. The Veteran has a current disability of right ear hearing loss. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341; 38 C.F.R. § 3.385. As to the second element, an in-service onset, event, injury, disease, or aggravation thereof, the Veteran asserts his hearing loss began after working in his ship’s engine room during his active military service. He also reported to the April 2013 VA examiner that he was “knocked out by a blow to the right side of his head by a bottle during a brawl in the military.” April 2013 VA Audiology Examination. During his December 2019 Board hearing, the Veteran testified that he was a machinist, 3rd Class Petty Officer in the military. He worked in the machinery room for three and a half years. He testified that instead of earplugs, he had to wear an “earpiece” so he could hear because he was also a “broaderman.” He needed to be able to hear in order to receive commands from the bridge. The Veteran testified that he believed his hearing loss had its onset during his time in the U.S. Navy. He recalled taking a hearing test during his military service. He testified that he was told he “didn’t do good” the first time, so he was required to take the test again, and he passed. He testified that “they [told him that they just changed [his] baseline so [he could] pass.” The Veteran’s military occupational specialty (MOS) was not listed in his DD-214. Nevertheless, his DD-214 indicates he took an engineering class for four weeks in December 1988 as part of his military education. In addition, his general military records report he worked in engineering. The Board finds no evidence in the record that contradicts the Veteran’s assertions that he was a machinist during his military service. In addition, the Board finds the Veteran competent to report his MOS and duties, and finds his Board testimony credible and probative as it pertains to his MOS. Therefore, the Board finds the Veteran’s MOS as a machinist reasonably exposed him to a high probability of hazardous noise as he described. In addition, a November 1991 military service treatment record (STR) recorded that the Veteran reported being hit with an unknown object on the side of his head at a club. He complained to the treating medical professional of a “head injury due to assault.” The medical professional observed an injury to the area near the Veteran’s left eye. Although no injury was observed to the Veteran’s right side of his face, that does not mean he did not sustain an injury to that side. The Board finds the Veteran competent to report what happened to him, and the Board finds his testimony credible and probative. Accordingly, based on the competent, credible, and probative evidence of record, the Board finds that the Veteran’s MOS as a machinist and his assault that he suffered while in service constitute in-service events such that in-service noise exposure and an in-service injury to the Veteran’s head, including the right side, are conceded. Therefore, the second element is satisfied. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341. As to the third element, whether a causal link exists between the Veteran’s right ear hearing loss and his in-service events, the Board finds this element is met based on the competent, credible, and probative evidence of record. To begin, the April 2013 VA audiology examiner did not provide a nexus opinion as to the Veteran’s right ear hearing loss because the Veteran’s VA claims file was unavailable to her. VA obtained an addendum opinion in August 2013. The examiner reviewed the Veteran’s claims file and opined that the Veteran’s right ear hearing loss was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner, however, did not consider the Veteran’s MOS because it was not specified on his DD-214. There is no indication within the opinion that the examiner considered the Veteran’s lay statements to the April 2013 examiner as to his MOS. As stated, the Board has found the Veteran’s MOS reasonably exposed him to a high probability of hazardous noise. Therefore, the Board cannot credit the examiner’s opinion because it was not based on the full set of available, relevant facts. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one.”); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (opinion is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations[.]”). The August 2013 examiner also relied on the Veteran’s in-service audiometric evaluations in July 1988 and July 1992. The examiner found the Veteran’s results indicated he had normal hearing on entry into and exit from service. The U.S. Court of Appeals for Veterans Claims has held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, the Hensley court’s directives are consistent with the regulations that provide service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). A review of the Veteran’s audiometric test results within his STRs reveals unusual findings. The Veteran underwent multiple audiometric testing during his military service. The following are the findings of various audiometric evaluators during the Veteran’s active service according to his STR hearing conservation data: • An evaluator compared the Veteran’s July 1988 entrance examination audiometric test results with his September 1989 annual examination audiometric test results, which indicated a significant threshold shift; • An evaluator compared the Veteran’s July 1988 entrance examination audiometric test results with his March 1991 annual examination audiometric test results, which indicated a significant threshold shift; • An evaluator compared the Veteran’s July 1988 entrance examination audiometric test results with his March 1991 annual examination audiometric test results, which indicated a significant threshold shift, but approximately 30 days early, the evaluator had found no threshold shift; • An evaluator compared the Veteran’s 1988 entrance examination audiometric test results with his September 1992 separation examination audiometric test results, which indicated no significant threshold shift. According to the STR hearing conservation data, the Veteran’s right ear hearing loss became worse in service, but then became better near the end of his military service. No medical opinion addressed this data. The Board finds it highly significant in this context, where the Veteran asserts his right ear hearing loss began while in service or immediately thereafter and is due to his active service. In addition, this tends to lend credible support to his assertion that his baseline was changed in one test in order for him to pass. The Board finds after consideration of the Veteran’s statements and testimony in conjunction with his recorded in-service audiometric test results, it concludes that the Veteran’s right ear hearing loss is at least as likely as not etiologically related to his active military service, to include hazardous noise exposure and/or assault. The Board notes that there is no competent, credible, or probative evidence of record that contradicts or calls into question the Veteran’s statements or testimony, nor is there evidence that contradicts or calls into doubt the Veteran’s STR hearing conservation data. Therefore, the third element is satisfied. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341. Accordingly, the Veteran is entitled to service connection for right ear hearing loss. 2. Entitlement to service connection for bilateral tinnitus Much of the foregoing analysis will be incorporated or referenced within the analysis of the Veteran’s claim for service connection for tinnitus. As to the first element of service connection, a current disability, the Board finds the Veteran has tinnitus. Tinnitus is a condition that is capable of lay observation by the person experiencing the condition. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The Board finds the Veteran competent to report his tinnitus, and the Board finds his statements and testimony credible and probative on this issue. Therefore, the first element is satisfied. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341. As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, for the reasons previously discussed, the Board finds the Veteran’s MOS as a machinist and his in-service assault constitute in-service events such that in-service noise exposure and an in-service injury to the Veteran’s head, including the right side, are conceded. Therefore, the second element is satisfied. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341. As to the third element of service connection, a causal link between the Veteran’s current disability and in-service events, the Board finds the Veteran’s tinnitus is at least as likely as not etiologically related to his active military service, to include hazardous noise exposure and/or assault. The Veteran has provided credible and probative statements and testimony that he was exposed to hazardous noise as a machinist and did not utilize earplugs during his duties. The evidence also credibly indicates the Veteran suffered an injury to his head while in service. These events reasonably lead the Board to believe that he may have experienced tinnitus symptoms during active service or immediately thereafter, which have been continuous since. While the August 2013 VA examiner provided a negative nexus opinion, the Board finds it has no probative value for the reasons previously discussed. The Board finds the lack of competent, credible, and probative evidence to the contrary weighs in the Veteran’s favor. Moreover, the procedural history of this case leads the Board to conclude that equity and justice suggest that service connection for tinnitus should be granted. Therefore, the third element is satisfied. Davidson, 581 F.3d 1313; Pond, 12 Vet. App. 341. Accordingly, the Veteran is entitled to service connection for tinnitus. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.