Citation Nr: 21061312 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-23 012 DATE: October 1, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus, secondary to hearing loss, on a causation basis, is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's right ear hearing loss began during active service. 2. The Veteran's tinnitus is caused by his now service-connected hearing loss. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus, as secondary to now service-connected right hearing loss, on a causation basis, are met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to July 1990. These matters come before the Board of Veterans' Appeals (Board) from a December 2016 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a July 2021 hearing and a transcript of the hearing is associated with his claims file. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Organic diseases of the nervous system (e.g., sensorineural hearing loss) are included on the list of chronic diseases. Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Service connection is also warranted for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 1. Entitlement to service connection for right ear hearing loss The Veteran contends that he has current hearing loss which had its onset in service. The Board finds, for the following reasons, that the Veteran has current right ear hearing loss disability as defined by VA, and that the evidence is at least evenly balanced as to whether this disability began during active service. As an initial matter, the Board notes that the Veteran reported on an August 1983 report of medical history form completed for purposes of entrance into service that he experienced hearing loss prior to service. He also reported a history of hearing loss prior to service during the July 2021 Board hearing. The Board points out, however, that a veteran will be considered 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The term "noted," in 38 U.S.C. § 1111, refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304 (b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In this case, although the Veteran is competent to report a history of hearing loss prior to service, a veteran's report of history, even when related by a medical professional, without an independent basis in the record, is insufficient to rebut the presumption of soundness. Miller v. West, 11 Vet. App. 345 (1998). There is no other evidence of any pre-existing right ear hearing loss disability prior to service and the Veteran's August 1983 entrance examination did not reflect any right ear hearing loss disability. Therefore, the Board finds that the evidence is not clear and unmistakable that any right ear hearing loss disability pre-existed service and was not aggravated in service and the Veteran is presumed sound at service entrance. 38 U.S.C. § 1111. The report of a November 2016 VA audiological examination shows that the Veteran has been diagnosed as having right ear sensorineural hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. Therefore, current right ear hearing loss disability has been demonstrated. There is also evidence of right ear hearing impairment in service and evidence of continuous symptoms in the years since service. In this regard, the Veteran has reported that he began to experience right ear hearing impairment in service. Service treatment records reflect that an audiological evaluation conducted in January 1990 revealed a pure tone threshold of 25 decibels at 2,000 Hertz in the right ear. The Board points out that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, right ear hearing impairment was evident during service. Moreover, the Veteran's post-service medical records and lay statements indicate that his right ear hearing loss symptoms have continued in the years since service (see e.g., the Veteran's testimony during the July 2021 Board hearing). The Veteran is competent to report hearing impairment in service and continuous hearing loss in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is no evidence to explicitly contradict the Veteran's reports and they are generally consistent with the evidence of record. Thus, the Board finds that the reports of hearing impairment in service and continuous hearing loss symptoms in the years since service are credible. The audiologist who conducted the November 2016 VA audiological examination opined that the Veteran's right ear hearing loss was not likely (not "at least as likely as not"/"50 percent probability or greater") caused by or a result of service. He reasoned that a comparison of the audiograms conducted during the Veteran's entrance and separation examinations did not reveal any significant decline. The audiogram is the gold standard for the objective measurement of hearing loss (including acoustic trauma) and the Veteran's audiograms document that there was no hearing loss incurred in service. Moreover, the examiner noted that the Veteran's hearing loss could not logically be attributed to military noise exposure, and that this was supported by the Institute of Medicine's large-scale study published in 2005, which found that there was an insufficient scientific basis for delayed or late onset noise-induced hearing loss. The Veteran reported military noise exposure from radar equipment and occasional noise exposure as a university environmental safety manager. He had a history of sudden right ear hearing loss within the previous two years. The November 2016 opinion is of little, if any, probative value because it is partially based upon an inaccurate history. Specifically, the examiner reasoned that the Veteran's audiograms conducted during service document that there was no hearing loss incurred in service. However, as explained above, right ear hearing impairment (i.e., a pure tone threshold above 20 decibels) was noted during the January 1990 audiogram. Therefore, the November 2016 opinion is partially based on an inaccurate history and is of little probative value. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). Moreover, the November 2016 opinion does not take into account the Veteran's competent and credible reports of hearing impairment in service and continuous hearing loss symptoms in the years since service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). In sum, the evidence reflects that the Veteran experienced right ear hearing impairment in service and that there have been continuous right ear hearing loss symptoms in the years since service. He also experiences current right ear hearing loss disability. There is no adequate medical opinion that is contrary to a conclusion that the current right ear hearing loss had its onset in service. Thus, the evidence is at least evenly balanced as to whether this disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). 2. Entitlement to service connection for tinnitus, secondary to hearing loss, on a causation basis The November 2016 VA audiological examination report indicates that the Veteran experiences tinnitus. Therefore, current tinnitus has been demonstrated. As for the etiology of the Veteran's tinnitus, the examiner who conducted the November 2016 examination opined that the Veteran had a diagnosis of clinical hearing loss, and that his tinnitus was likely ("at least as likely as not"/"50 percent probability or greater") a symptom associated with his hearing loss. This opinion was based on the fact that tinnitus is a known symptom associated with hearing loss. The November 2016 opinion is based upon an examination of the Veteran, a review of his records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Thus, the November 2016 opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In sum, the November 2016 opinion supports the conclusion that the Veteran's current tinnitus is caused by his now service-connected right ear hearing loss. There is no medical opinion specifically contrary to this conclusion. Accordingly, service connection for tinnitus, secondary to now service-connected hearing loss, on a causation basis, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. The Veteran contends that he has current left ear hearing loss that had its onset in service. He was afforded a VA audiological examination in November 2016, but he did not have left ear hearing loss disability as defined by VA at the time of the examination. See 38 C.F.R. § 3.385. He reported during the July 2021 Board hearing that his hearing loss had worsened since the November 2016 examination and he subsequently submitted the reports of private audiological examinations dated from May 2018 to April 2021 which appear to indicate worsening. However, it is unclear from these records whether the Veteran's left ear hearing loss now meets the definition of hearing loss disability as defined by VA. In light of the above, a remand is necessary to afford the Veteran a new VA audiological examination to determine whether he now has left ear hearing loss disability and to obtain a medical opinion as to whether any such disability is related to service. Also, the claims file includes the reports of the audiological examinations from Cedar Valley Hearing Aid Center dated in May 2018, May 2019, June 2020, and April 2021. Although the Veteran's pure tone thresholds are charted, the specific air conduction thresholds, in decibels, are unclear. Hence, a remand is also necessary to seek clarification from Cedar Valley Hearing Aid Center as to the air conduction thresholds, in decibels, that were measured during the above dated examinations. See Savage v. Shinseki, 24 Vet. App. 259, 269 (2011) (clarification from a private medical examiner must be sought when an examination report is unclear or insufficient and the missing information is relevant, factual, and objective). The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for hearing loss, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for hearing loss from any sufficiently identified private treatment provider from whom records have not already been obtained. Also, ask Cedar Valley Hearing Aid Center to provide the specific left ear air conduction pure tone thresholds, in decibels, that were recorded during the Veteran's May 2018, May 2019, June 2020, and April 2021 examinations (and any additional examinations conducted since approximately July 2016). Ask the Veteran for any necessary assistance in obtaining this clarification. All efforts to obtain these records must be documented in the file. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine whether he has any left ear hearing loss disability as defined by VA and to obtain a medical opinion as to whether any such disability is related to service. The examiner must opine whether any left ear hearing loss experienced by the Veteran since approximately July 2016 at least as likely as not (1) began during service; (2) manifested within one year after separation from service; OR (3) is related to an injury or disease during service, including his reported noise exposure and hearing impairment in service and the left ear hearing impairment (i.e., pure tone thresholds above 20 decibels) documented in his service treatment records. The examiner is advised that although the Veteran reported hearing loss prior to service, he was presumed sound at service entrance. (CONTINUED ON NEXT PAGE) The examiner must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.