Citation Nr: 21061635 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-30 966 DATE: October 4, 2021 ORDER Service connection for right ear hearing loss is granted. FINDING OF FACT The Veteran's current right ear hearing loss had its onset in service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from July 1972 to July 1975. He also served on active duty in the Army from June 1991 to December 1991, with additional service in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of April 2014 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The April 2014 RO decision denied service connection for low back disability; a neck disability; a left shoulder disability; bilateral hearing loss; and for tinnitus. The November 2015 RO decision denied a claim for entitlement to a total disability rating based on individual unemployability (TDIU). In July 2019, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In December 2019, the Board remanded the issues of entitlement to service connection for a low back disability; a neck disability; a left shoulder disability; and for bilateral hearing loss, as well as the issue of entitlement to a TDIU, for further development. A May 2021 RO decision granted service connection and a 40 percent rating for degenerative arthritis, with degenerative disc disease, of the lumbar spine, effective September 30, 2013; granted service connection and a 20 percent rating for radiculopathy of the left lower extremity, sciatic nerve, effective April 29, 2021; granted service connection and a 30 percent rating for cervical spine degenerative arthritis and degenerative disc disease, with spinal stenosis, effective September 30, 2013; and granted service connection and a noncompensable rating for left ear hearing loss, effective September 30, 2013. By this decision, the RO also granted service connection for a left shoulder rotator cuff tendonitis, with glenohumeral joint osteoarthritis, and status post an arthroscopy, with debridement of SLAP, a synovectomy, and subacromial decompression, and assigned a 20 percent rating, effective October 4, 2013, a 100 percent rating, effective May 26, 2017, and a 20 percent rating, effective August 1, 2017. The RO further granted service connection and a noncompensable rating for surgical scars of the left shoulder, effective May 26, 2017, and granted entitlement to a TDIU, effective September 30, 2013. Therefore, the issues of entitlement to service connection for a low back disability; a neck disability; a left shoulder disability; and for left ear hearing loss, as well as the issue of entitlement to a TDIU, are no longer before the Board. Right Ear Hearing Loss Establishing service connection generally requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C.A. § 101 (24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). Impaired hearing will be considered to be a disability for VA purposes when the thresholds for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or more; the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2018). One requirement for service connection is the current existence of the claimed disability. With regard to hearing loss, 38 C.F.R. § 3.385 defines what constitutes the current existence of a hearing loss disability. For service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular 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 at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran is service-connected for left ear hearing loss and for tinnitus. He is also service-connected for degenerative arthritis, with degenerative disc disease of the lumbar spine; radiculopathy of the left lower extremity, sciatic nerve; cervical spine degenerative arthritis and degenerative disc disease, with spinal stenosis; left shoulder rotator cuff tendonitis, with glenohumeral joint osteoarthritis, and status post an arthroscopy, with debridement of SLAP, a synovectomy, and subacromial decompression; and surgical scars of the left shoulder. The Veteran contends that he has right ear hearing loss that is related to service. He specifically maintains that he has right ear hearing loss as a result of acoustic trauma during service while serving on an aircraft carrier. The Veteran also indicates that he worked as a plane handler. He reports that he was exposed to loud noise from jet aircraft engines, as well as large electric motors. The Veteran indicates that he suffered tinnitus within six to twelve months of his discharge from the Navy in July 1975. He states that he has progressive hearing loss that began during the 1970s while serving in the Navy. The Veteran essentially asserts that he suffered right ear hearing loss during service and since service. The Veteran served on active duty in the Navy from July 1972 to July 1975. He also served on active duty in the Army from June 1991 to December 1991, with additional service in the Army Reserve. The Veteran's service treatment records, for his period of active duty in the Navy from July 1972 to July 1975, do not specifically show a hearing loss disability in the right ear as defined by 38 C.F.R. § 3.385. There is also no specific evidence of right hearing loss within the year after the Veteran's period of active duty as required for the presumption of service connection. His service treatment records, for his period of active duty in the Army from June 1991 to December 1991, also do not show a hearing loss disability in the right ear as defined by 38 C.F.R. § 3.385. There is also no specific evidence of right hearing loss within the year after the Veteran's period of active duty as required for the presumption of service connection. On a medical history form at the time of a January 1988 examination, for Army Reserve purposes, the Veteran reported that he didn't know if he had hearing loss. The reviewing examiner referred to possible hearing loss, with audiometry okay. The January 1988 objective examination report, for Army Reserve purposes, does not show a hearing loss disability in the right ear as defined by 38 C.F.R. § 3.385. On a medical history form at the time of March 1995 examination, for Army Reserve purposes, the Veteran reported that he had hearing loss. The reviewing examiner referred to a physician, but hearing loss was not diagnosed. A March 1995 objective examination report does not show a hearing loss disability in right ear as defined by 38 C.F.R. § 3.385, was not shown at that time. Post-service private and VA treatment records, including a VA examination report, show treatment for right ear hearing loss. The evidence of record shows that the Veteran was exposed to in-service acoustic trauma and that he has been currently diagnosed with right ear hearing loss, under the provisions of 38 C.F.R. § 3.385. An April 2014 VA audiological examination report includes a notation that the Veteran's claims file was reviewed. The examiner stated that the pure tone test results were not valid for rating purposes. The examiner reported that the speech reception thresholds were significantly better than the pure tone responses indicated in both ears, which showed poor inter-test consistency. The examiner stated that the Veteran was re-instructed with no improvement. As to diagnoses, the examiner indicated that the Veteran had normal hearing in the right ear. The examiner reported that there was not a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hertz for the right ear. The examiner also stated that right ear hearing loss did not exist prior to service, and that an opinion, as to the Veteran's right ear hearing loss, was not provided. The examiner indicated that the Veteran had a moderate probability of military noise exposure because his records show an occupational specialty of a traffic management coordinator. It was noted that no active duty audiograms were found in the service treatment records. The examiner maintained that a June 1979 initial audiogram, for Reserve purposes, shows normal hearing, bilaterally. The examiner also stated that a March 1995 audiogram, for Reserve purposes, shows hearing within normal limits in both ears, with no hearing loss or clinically significant hearing threshold shift. The examiner reported that a January 2013 VA audio evaluation shows mild to moderate hearing loss, bilaterally, but test inconsistencies were noted, at that time. The examiner related that subsequent notes show that the Veteran did not show for hearing aids on three separate occasions. An April 2021 VA audiological examination reports includes a notation that the Veteran's claims file was reviewed. The Veteran reported that he had progressive hearing loss that began in the 1970s when he was serving in Navy. The examiner reported results that were indicative of right ear hearing loss as defined by 38 C.F.R. § 3.385. The diagnoses included sensorineural hearing loss, in the frequency range of 500 to 4000 Hertz, in the right ear. The examiner indicated that the Veteran's right ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by, or a result of, an event during military service. The examiner reported that a moderate amount of military noise exposure was conceded based on the Veteran's occupational specialty as a plane handler, and in traffic management, while on active duty in the Navy and Army. The examiner stated that the Veteran reported that he had progressive hearing loss that began in the 1970s while serving in the Navy. The examiner maintained that there was no significant permanent shift in hearing thresholds beyond test variability from the entrance examination to the separation examination in the right ear, which was objective evidence of no permanent auditory damage during active duty for the conceded noise exposure. The examiner stated that there was no report of complaint or treatment for a hearing decrease in the service treatment records, or at separation, or, pursuant to an audiogram, for Reserve purposes, in March 1995. The examiner related that although noise exposure was conceded, the relationship of noise, auditory damage, and hearing loss, was well-established, and that auditory damage and hearing loss were not conceded based on noise alone. The examiner maintained that there must be a nexus of auditory damage to related current hearing loss to military noise, and not another etiology. The examiner indicated that the evidence was against a nexus, and that, therefore, it was less likely than not that the Veteran's right ear hearing loss was related to military noise exposure. The Board observes that the evidence shows that the Veteran was exposed to in-service acoustic trauma and that he has right ear hearing loss for VA compensation purposes. The Board notes that an examiner, pursuant to an April 2014 VA audiological examination report, following a review of the claims file, indicated that that the pure tone test results were not valid for rating purposes. The examiner reported that the speech reception thresholds were significantly better than the pure tone responses indicated in both ears, which showed poor inter-test consistency. The examiner maintained that the Veteran was re-instructed with no improvement. The examiner indicated, as to diagnoses, that the Veteran had normal hearing in the right ear. The examiner specifically reported that an opinion, as to the Veteran's right ear hearing loss, was not provided. The Board observes that the examiner indicated that the Veteran had normal hearing in the right ear. The Board notes that post-service treatment records show treatment for right ear hearing loss. Additionally, a subsequent April 2021 VA audiological examination reports shows that the Veteran has right ear hearing loss as defined by 38 C.F.R. § 3.385. Therefore, the Board finds that the April 2014 VA audiological examination report has little probative value in this matter. The Board notes that an April 2021 VA audiological examination report relates diagnoses, including sensorineural hearing loss, in the frequency range of 500 to 4000 Hertz, in the right ear. The examiner, following a review of the claims file, indicated that the Veteran's right ear hearing loss was not at least as likely as not caused by, or a result of, an event during military service. The examiner conceded that there was a moderate amount of military noise exposure. The examiner also stated that the Veteran reported that he had progressive hearing loss that began in the 1970s while serving in the Navy. In the VA examination report, the examiner opined that there was no significant permanent shift in hearing thresholds beyond test variability from the entrance examination to the separation examination in the right ear, which was objective evidence of no permanent auditory damage during active duty for the conceded noise exposure. The examiner stated that there was no report of complaint or treatment for a hearing decrease in the service treatment records, or at separation, or, pursuant to an audiogram, for Reserve purposes, in March 1995. The examiner also maintained that there must be a nexus of auditory damage to related current hearing loss to military noise, and not another etiology. The examiner indicated that the evidence was against a nexus, and that, therefore, it was less likely than not that the Veteran's right ear hearing loss was related to military noise exposure. The Board observes that the examiner appears to indicate that because there was no significant permanent shift in hearing thresholds during service, and that there was no complaint or treatment for a hearing decrease in the service treatment records, or, pursuant to an audiogram, for Reserve purposes, in March 1995, the Veteran's right ear hearing loss was not related to his periods of service. The Board notes, however, that in regard to the Veteran's right ear hearing loss, the absence of documented hearing loss, as defined by VA, while in service is not fatal to a claim for service connection. See Ledford, 3 Vet. App. at 87. Additionally, when a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Further, the Board notes that although the examiner referred to the Veteran's report of progressive hearing loss that began in the 1970s while serving in the Navy, she did not address the fact that the Veteran is competent to report in-service right ear hearing problems, continuous right ear hearing loss symptomatology since service, and current symptoms that form the basis for diagnosis of disability. See Davidson, 581 F.3d at 1313. Therefore, the Board finds that the VA examiner's opinions, pursuant to the April 2021 VA audiological examination report, are not probative in this matter. The Veteran is competent to report right ear hearing problems during service and since that time. Moreover, the Board finds that his reports of noise exposure during service and right ear hearing problems since service are credible. See also Jandreau v. Nicholson, 492 F.3d 1372 (2007). Here, in light of the Veteran's credible report of right ear hearing loss since his periods of active duty, his documented in-service acoustic trauma and his current disability, and resolving all reasonable doubt in his favor, the Board finds that the Veteran has right ear hearing loss that had its onset during his periods of active duty. As such, service connection is warranted. (Continued on the next page) As the Board has granted direct service connection in this matter, it need not address other theories of service connection. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. D. Regan, 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.