Citation Nr: 21062040 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-62 544 DATE: October 6, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's left ear hearing loss is related to in-service acoustic trauma. 2. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 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 2007 to September 2007 and March 2008 to April 2009 and performed service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claims of service connection for bilateral hearing loss and tinnitus. In September 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a virtual hearing. A transcript of that hearing is not necessary given that either the Board is granting the benefits sought in full or remanding for further development. Entitlement to service connection for left ear hearing loss and tinnitus The Veteran contends that he experienced in-service acoustic trauma from his duties as a military police officer, to include patrolling in Humvees, proximity to controlled explosions, riding in military aircraft, and firing at the gun range. In regard to the claim of service connection for tinnitus, the Veteran stated during his September 2021 Board hearing that he has experienced tinnitus since approximately 2009. 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. § 1110; 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). A hearing loss disability is defined for VA compensation purposes using audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Court in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated 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. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that 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. Id. The Veteran's January 2008 audiological examination completed prior to deployment resulted in the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 10 15 LEFT 0 5 5 10 15 The Veteran's March 2008 in-service audiological examination resulted in the following auditory thresholds, showing a threshold shift in the left ear of 25dB at 4000Hz: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 0 LEFT 5 0 0 15 40 The Veteran's May 2010 audiological examination from after his deployment resulted in the following auditory thresholds, with threshold shifts from the March 2008 audiological examination in the right ear of 15dB at 500Hz, 10dB at 1000Hz, 5dB at 2000Hz, 10dB at 3000Hz, and 20dB at 4000Hz, and in the left ear of 15dB at 500Hz, 25dB at 1000Hz, 20dB at 2000Hz, and 5dB at 3000Hz: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 15 20 LEFT 20 25 20 20 10 The Veteran's December 2010 in-service audiological examination resulted in the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 20 15 LEFT 25 25 10 20 15 Based on an April 2016 VA audiological examination, the Veteran has met the governing regulatory threshold for left ear hearing loss outlined in 38 C.F.R § 3.385. The Veteran scored 100 percent in both ears on the word recognition test, and met the criteria for a diagnosis of left ear hearing loss for VA purposes with the below auditory threshold results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 20 25 LEFT 30 45 30 20 20 The Veteran therefore has a current left ear hearing loss disability under VA regulations. 38 C.F.R. § 3.385. In addition, the Veteran is competent to identify tinnitus, as ringing in the ears is readily observable by laypersons and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Veteran has a current disability of tinnitus. In April 2016, a VA audiologist found that the Veteran's right ear hearing was normal upon present evaluation, and the Veteran's left ear hearing was normal following separation from service in December 2010. The audiologist noted that, in its landmark report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), the Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. The Institute of Medicine stated, "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." Thus, the audiologist found it was less likely than not that the Veteran's bilateral hearing loss was not related to military service. In addition, in regard to the Veteran's tinnitus, the VA audiologist found that it was less likely than not that the Veteran's tinnitus was a symptom associated with his hearing loss or was related to military noise exposure. The audiologist reasoned that tinnitus and hearing loss can occur separately. Although they commonly are present together, they are not necessarily mutually occurring and have varying causes. Hearing loss does not cause tinnitus or vice versa. There were also no complaints of tinnitus in the Veteran's service treatment records, and he did not indicate he experienced ringing of the ears on his post-deployment health assessment form in July 2009. A VA treatment record from December 2016 noted that the Veteran complained of hearing loss since service. For the following reasons, entitlement to service connection for left ear hearing loss and tinnitus is warranted. As an initial matter, the Veteran has current left ear hearing loss and tinnitus disabilities, and evidence of record, to include the Veteran's military personnel record, of in-service noise exposure is credible and consistent with the circumstances of the Veteran's service as a military police officer. 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran meets the current disability and in-service injury or disease requirements. In regard to nexus, the Veteran is competent to report the onset and persistent nature of his hearing loss and tinnitus symptoms. Jandreau, 492 F.3d at 1377 (a layperson is competent to report observations). There is nothing in the evidence of record to indicate that the Veteran's statements as to the continuous or recurrent nature of his hearing loss and tinnitus symptoms since service are not credible. Thus, those lay statements as to experiencing hearing loss and tinnitus with continuous symptoms since service are credible. Moreover, the Veteran's May 2010 post-deployment audiological examination showed a threshold shift during active duty service. Thus, the Veteran's military occupation specialty of military police, the competent evidence of in-service acoustic trauma and continuous symptoms of hearing loss and tinnitus, and the May 2010 post-deployment audiological examination showing threshold shifts in hearing during service all weigh in favor of a nexus between the current hearing loss disability and the in-service acoustic trauma. Moreover, the April 2016 VA audiological opinions are inadequate as they did not consider the Veteran's competent and credible lay statements regarding continuous hearing loss and tinnitus symptoms since separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The absence of hearing loss disability (as defined by 38 C.F.R. § 3.385 ) in service is not in and of itself fatal to a claim of service connection for hearing loss disability. Hensley, 5 Vet. App. at 159; Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In other words, the absence of evidence of a hearing loss disability as defined by this regulation in service does not necessarily mean that the Veteran did not experience any hearing impairment in service. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's left ear hearing loss and tinnitus are related to in-service acoustic trauma. 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 left ear hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for right ear hearing loss During his September 2021 Board hearing, the Veteran contended that his right ear hearing loss disability had increased in severity. The Veteran's last VA audiology examination was in April 2016. At that time, the Veteran did not meet the criteria for a right ear hearing loss disability as defined for VA compensation purposes. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). In this case, the evidence reflects the possibility of increased right ear hearing loss since the April 2016 VA examination. Consequently, a remand for a new audiological examination is warranted. Accordingly, the matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination. The examination should be conducted n accordance with the current disability benefits questionnaire. IF the Veteran's right ear audiometric or speech recognition scores meet the criteria for hearing loss disability under 38 C.F.R. § 3.385, the examiner should indicate whether right ear hearing loss is at least as likely as not (50 percent probability) related to service, to include the Veteran's contention that he was exposed to acoustic trauma in-service. The claims file should be provided to and reviewed by the audiologist. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.