Citation Nr: 21001093 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-28 385 DATE: January 7, 2021 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s hearing loss did not manifest to a compensable degree within one year of separation from service; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury, disease, or event. 2. The Veteran’s tinnitus had its onset in service and continuity of symptomatology is established. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. 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 March 1970 to March 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In May 2019, the Veteran testified at a videoconference hearing before the undersigned. In October 2019, the Board remanded this matter for additional development. The issue of entitlement to service connection for tinnitus is reasonably raised by the record and is encompassed by the Veteran’s claim of entitlement to service connection for hearing loss. Service Connection 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. To establish entitlement to service connection, a veteran must show (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). For veterans who have served continuously for 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If symptoms of a chronic disease are noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required to presumptively establish service connection. 38 C.F.R. § 3.303. 1. Entitlement to service connection for hearing loss is denied. The Veteran asserts that his hearing loss is related to noise exposure in the Republic of Vietnam. See, e.g. October 2019 Hearing Transcript. 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, 3000 or 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 presented for a VA audiological examination in June 2014. The audiological thresholds recorded at that examination did not show a hearing loss disability for VA compensation purposes. The examiner opined that it was less likely than not that the Veteran’s hearing loss caused by or a result of noise exposure in service and stated that the Veteran did not have a significant threshold shift beyond normal variability / normal progression in service. See June 2014 VA Audiological Examination Report. In May 2019, the Veteran testified at a videoconference hearing before the undersigned. He reported noise exposure in service related to his work with artillery units in the Republic of Vietnam and testified that he was not exposed to post-service occupational noise. Moreover, he reported that his hearing test at separation was irregular, as during the test the examiner told him that “if you don’t want to stay here for a couple more weeks for additional tests, you’ better start punching the button.” See Hearing Transcript at 4-5. In October 2019, the Board remanded this matter for additional development. The Board directed that the Veteran be afforded another examination and that an addendum opinion should be secured. The Board requested that the examiner not rely solely on the absence of hearing loss at separation, as no threshold was recorded at 3000 hertz. Additionally, the Board requested that the examiner discuss the relevance, “if any,” of the Veteran’s hearing threshold at 6000 hertz at service entry and at separation and requested that the examiner discuss the Veteran’s report of abnormalities in his separation audiological examination. See October 2019 Board Remand at 2-4. In February 2020, the Veteran presented for an audiological examination with a VA-contracted examiner. The examiner found right ear pure tone thresholds of 30 decibels at 500 hertz, 35 decibels at 1000 hertz, 25 decibels at 2000 hertz, 30 decibels at 3000 hertz, 30 decibels at 4000 hertz, and 40 decibels at 6000 hertz; and left ear pure tone thresholds of 25 decibels at 500 hertz, 30 decibels at 1000 hertz, 30 decibels at 2000 hertz, 35 decibels at 3000 hertz, 45 decibels at 4000 hertz, and 55 decibels at 6000 hertz. Right ear speech discrimination was 94 percent and left ear speech discrimination was 98 percent. See February 2020 Audiological Examination Report. The examiner opined that it was not at least as likely as not that the Veteran’s bilateral hearing loss was caused by or the result of an event in service. The examiner explained that the Veteran’s entrance examination showed normal hearing and that the separation audiogram showed normal hearing at 500, 1000, 2000, and 4000 hertz. While the separation audiogram did not record hearing thresholds at 3000 hertz or 6000 hertz, the examiner explained that the Veteran had an audiological examination in June 2014 in which the result of the evaluation showed the Veteran’s hearing within normal limits at both 3000 hertz and 6000 hertz, and thus the examiner reasoned that if these frequencies were normal in 2014 they were likely also normal in 1973. See id. at 4. In additional remarks, the examiner explained that the Veteran’s hearing loss was most likely due to aging based on a three-fold rationale that considered the Veteran’s military service, post-service occupational history, and current examination findings. With respect to the Board’s request to comment on the Veteran’s reported abnormalities in his 1973 separation audiological examination, the examiner stated that he had heard similar reports from other veterans and that these abnormalities are unprofessional and manipulative. However, in the Veteran’s case, this intimidation did not affect the examiner’s opinion because the Veteran also did not meet the criteria for VA hearing loss at his 2014 examination. See id. at 6. Here, there has been substantial compliance with the Board’s remand directives. In this regard, the examiner provided a thorough rationale and additional remarks that addressed the issues identified in the Board remand. The examiner explained that notwithstanding these abnormalities, she was able reach an informed conclusion by relying on the 2014 audiological examination report showing normal hearing. Although the examiner did not directly address the entrance examination report showing 6000 hertz, the examiner’s rationale is substantially compliant because she explained why she was able to make an informed decision notwithstanding the absence of recorded separation thresholds at 3000 hertz and 6000 hertz. With respect to the merits of the claim, the evidence shows a current bilateral hearing loss disability for VA compensation purposes, as the February 2020 examination report shows bilateral auditory thresholds of 26 decibels at three or more of the frequencies 500, 1000, 2000, 3000 or 4000 hertz. See February 2020 Audiological Examination Report. Moreover, acoustic trauma in service is conceded as consistent with the places and circumstances of the Veteran’s service involving work with artillery in the Republic of Vietnam. See 38 U.S.C. § 1154(b). Accordingly, the key question in the appeal is whether the evidence shows an etiological relationship between the Veteran’s service and his current bilateral hearing loss, or whether such a relationship can be presumed. Presumptive service connection is not available. In this regard, no audiological findings in the record meet the criteria for a compensable hearing loss disability under 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Moreover, continuity of symptomatology is not established, as the February 2020 examiner explained that based on the 2014 audiological results, the Veteran did not have a VA hearing loss disability in 2014. Moreover, the February 2020 examiner attributed the Veteran’s current hearing loss disability to aging, an intercurrent cause, rather than acoustic trauma in service. With respect to direct service connection, the evidence weighs against the claim. The February 2020 examiner is an audiologist and thus is shown to be competent to provide a medical opinion. Moreover, her opinion is adequate, as it is based on the history of the Veteran’s disability including his military service, post-service occupational history, and objective audiological examination reports. Thus, it is probative evidence that weighs against the claim. The Board acknowledges the Veteran’s sincere belief that his hearing loss is related to acoustic trauma in service. Although lay persons are competent to provide opinions on some medical issues, establishing a relationship between current hearing loss and acoustic trauma decades earlier is outside the common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). While the Veteran is competent to report his symptoms, an opinion linking current hearing loss to acoustic trauma decades earlier requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Veteran’s assertion that his hearing loss is due to acoustic trauma is not probative. 2. Entitlement to service connection for tinnitus is granted. At the February 2020 audiological examination, the Veteran reported recurrent tinnitus since 1971. See February 2020 Audiological Examination Report at 7. This evidence raises this issue as part of the Veteran’s claim for hearing loss. As noted above, the 2020 audiological examiner noted the Veteran’s report of recurrent tinnitus since 1971, which would show an onset in service. However, the examiner did not provide a medical opinion as to the etiology of this condition, as no opinion was requested by the AOJ. See id. However, it is not necessary to remand this claim to obtain an opinion, as the present record supports a full grant of this benefit. As noted above, acoustic trauma is conceded as consistent with the places and circumstances of the Veteran’s service. See 38 U.S.C. § 1154(b). Tinnitus that is proximately due to a noise injury is a chronic disease for VA purposes. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); 38 C.F.R. §§ 3.303(b), 3.309(a). The Veteran is competent, as a lay person, to report the presence of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Moreover, the Veteran’s report of tinnitus since service is uncontradicted and is credible. In this regard, while the 2014 examination report states that the Veteran did not report recurrent tinnitus, the Board observes that this notation in the report is most likely due to the AOJ not requesting an opinion as to tinnitus as opposed to the Veteran denying the presence of tinnitus, as elsewhere in the report the examiner’s remarks note that the Veteran’s chief complaint is hearing loss and tinnitus. See June 2014 Examination Report at 4. Here, the only probative evidence of record as to the onset of the Veteran’s tinnitus is his competent and credible report of onset in service. Thus, as the evidence establishes the onset of a chronic disease in service, VA regulations mandate an award of service connection based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, entitlement to service connection for tinnitus is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.