Citation Nr: 21064629 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-03 229 DATE: October 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a headache disability, claimed as a result of residuals of a TBI or concussion, is remanded. FINDINGS OF FACT 1. The competent and credible evidence of record is in equipoise as to whether tinnitus was incurred during service. 2. The preponderance of the evidence is against associating any bilateral hearing loss disability with any incident of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to February 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an July 2018 rating decision issued by Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 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 those 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 threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for tinnitus The Veteran contends that tinnitus is the result of service. During the July 2021 Board hearing, the Veteran testified that after in-service artillery trainings, which included simulator blasting, he experienced muffled hearing and ringing in the ears. Based on a review of the claims file and the Veteran's reports, a May 2018 VA examiner conceded hazardous noise exposure. However, the examiner stated that in-service audiograms showed that there had been no "hearing injury while in service." Therefore, the examiner opined that while the Veteran reported that tinnitus was "constant and may have begun during service," the association between claimed tinnitus and noise exposure could not be established in the absence of an objectively verifiable noise injury. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board notes that tinnitus is recognized as a disorder being capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the medical and lay evidence for and against the claim are at least in equipoise and reasonable doubt is resolved in favor of the Veteran. Specifically, the Board finds that a current tinnitus disability cannot be disassociated from conceded in-service hazardous noise exposure and the Veteran's competent and credible reports or ringing in the ears during and since service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral hearing loss The Veteran asserts that bilateral hearing loss is the result of service. The service medical records do not contain any complaints of hearing loss. The service medical records show that there was no change in the pure tone thresholds from the August 1970 induction audiogram and February 1972 separation audiogram. The August 1970 pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 0 0 X 0 LEFT 0 0 X 0 The February 1972 pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 0 0 X 0 LEFT 0 0 X 0 During an April 2012 initial VA audiology evaluation, the Veteran reported that there had been a gradual decrease in hearing sensitivity. The Veteran reported service noise exposure and denied occupational and recreational noise exposure. During a July 2021 Board hearing, the Veteran was asked whether he had hearing loss while in service. The Veteran stated that it was not "clear to [him] exactly when it started..." A May 2018 VA examiner opined that despite conceded hazardous noise exposure, bilateral hearing loss was not the result of service. As a rationale, the examiner stated that in-service audiograms showed no significant threshold shift beyond normal variability while in service. The examiner explained that critical to determining hearing loss related to in-service noise exposure was evidence of a significant threshold shift beyond normal variability or normal progression while in service. Because the audiograms showed no significant threshold shift beyond normal variability while in service, it was unlikely that the Veteran had a hearing injury while in service. The Board finds that the most probative evidence of record does not support a finding of a medical nexus between service and a bilateral hearing loss disability. The Board finds that the evidence of record weighs against such a finding. The Board finds the May 2018 VA examiner's opinion highly probative and more probative than the Veteran's lay statements. The VA examiner's opinion is supported by a thorough rationale, which was based on the Veteran's lay reports, review of the claims file, general medical knowledge, and medical literature. The Board finds that the opinion is supported by the evidence of record which weighs against a finding of a nexus. Specifically, the evidence shows that there had been no significant threshold shift in the Veteran's hearing during service. The Veteran's hearing was normal at separation from service. The Veteran did not report hearing loss during the separation examination. The Veteran did not claim a hearing loss disability in February 1972 when he filed a claim for service connection for a skin disability. The Veteran did not report hearing loss until many years after separation from service; and when the Veteran reported hearing loss in 2012, he did not report that hearing loss began while in service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements. The Veteran is competent to report observable symptoms such as difficulty hearing. Layno v. Brown, 6 Vet. App. 465 (1994). However, the question of etiology of a hearing loss disability is a medical issue that requires medical training and expertise which the Veteran has not been shown to possess. Therefore, the Veteran is not competent to address etiology in the present case. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's assertions the Veteran's statements as to the etiology of bilateral hearing loss is not competent evidence and, consequently, are assigned little to no probative weight. The VA examiner's opinion outweighs the Veteran's lay assertions as to the etiology of a hearing loss disability. Accordingly, as the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, the claim is denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). REASONS FOR REMAND Entitlement to service connection for a headache disability as a result of residuals of a TBI or concussion is remanded. The Veteran asserts that a headache disability is the result of a TBI or concussion while in service. Specifically, during the July 2021 Board hearing, the Veteran testified that a headache disability was the result of a head injury while in service. The Veteran's representative stated that "in addition to the immediate proximity to the antitank simulator, the head injury could also be explained through the exposure the concussions due to blasts like mortar explosions, artillery rounds nearby and just the, the general concussive forces one experience[d] while in combat operations..." VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Personnel records show that the Veteran was stationed in Vietnam from January 1971 to December 1971, and he received the Combat Infantryman Badge. The Board notes that there is no medical evidence of a diagnosis headaches. However, the Veteran is competent to report that he experiences headaches. Therefore, the assertion that headaches are the result of service, to include "the general concussive forces one experience[d] while in combat operations," is sufficient to overcome the low threshold necessary to trigger VA's duty to provide an examination. Therefore, remand is necessary for a VA examination. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. (Continued on the next page) 2. Schedule the Veteran for a VA headache examination with an approved specialist for TBI examinations to determine the nature and etiology of any headache disability. The examiner must review the record and should note that review in the report. The examiner should confirm being one of the required specialists for TBI examinations. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any headache disability is related to service, to include the Veteran's reports of head injuries while in service. The examiner should consider the Veteran's lay statements regarding head injuries during service. The examiner should note that general concussive forces during combat operations as consistent with the circumstance of the Veteran's combat service are conceded and should opine whether it is at least as likely as not (50 percent or greater probability) that the concussive forces during combat operations contributed to any current headache disability. A clearly stated rationale with references to the record, diagnostic tests, general medical knowledge, and medical literature should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.