Citation Nr: 21064798 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-37 789 DATE: October 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for recurrent tinnitus is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The probative evidence demonstrates that the Veteran's bilateral hearing loss is related to service. 2. The probative evidence demonstrates that the Veteran's tinnitus is related to service and is proximately due to the service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In February 2019, the Veteran testified in a video-conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The Board is aware of the Court's decision in Quinn v. Wilkie, 31 Vet. App. 284, 292 (2019), which held that each time a legacy appeal (an appeal adjudicated prior to enactment of the Appeals Modernization Act) is returned to the Board the claimant is entitled to a Board hearing, even if a hearing was held previously. In this case, the Veteran, to date, has not requested another hearing. In June 2019, the Board dismissed claims for entitlement to service connection for tinnitus and a nonservice-connected pension pursuant to the Veteran's request during the February 2019 hearing, and remanded claims for service connection for degenerative joint disease of the lumbar spine, bilateral hearing loss, and entitlement to a TDIU for further development, to include obtaining VA medical opinions. In February and March 2020, the Veteran underwent VA examinations and the examination reports and associated medical opinions are of record and have been reviewed. In an August 2020 rating decision, VA granted service connection for degenerative joint disease of the lumbar spine, which is a full grant of the benefits on appeal for that claim. As such, the issue is no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). While the February 2020 VA medical opinion addressing the etiology of the Veteran's bilateral hearing loss reflects a number of deficiencies. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Nevertheless, the Veteran is not prejudiced by these deficiencies as the Board grants the claim for entitlement to bilateral hearing loss herein. Preliminary Matter Dismissal of a claim generally renders the Board without jurisdiction over the issue, see 38 C.F.R. § 20.104 (Jurisdiction of the Board), the February 2020 VA examiner opined that the Veteran's tinnitus is at least as likely as not related to military noise exposure as well as concluding that tinnitus is a symptom associated with the Veteran's hearing loss. Given that the VA examiner reasonably raised an inferred claim of entitlement to service connection for tinnitus and the issue has been adjudicated by the AOJ, see Statement of the Case dated June 3, 2016, it is appropriate for the Board to exercise jurisdiction over this claim in this appeal. Service Connection Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In this case, sensorineural hearing loss (as an organic diseases of the nervous system) is considered a "chronic disease" under 38 C.F.R. § 3.309(a). The presumptive service connection provisions are based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b), and manifestation to a degree of 10 percent within one year under 38 C.F.R. § 3.307 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree at that time. Id. A veteran shall be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1090 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not so noted, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner, 370 F.3d at 1096. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). When considering lay evidence, the Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Generally, the degree of probative value which may be attributed to a medical opinion of record takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examiner had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Bilateral Hearing Loss For the 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The results of the Veteran's December 2011 VA audiological examination reflect right ear puretone thresholds of 40 decibels or greater at 500, 3000, and 4000 hertz, and left ear puretone thresholds of 30 decibels at 500 and 1000 hertz, and 60 decibels at 4000 hertz. Accordingly, the Board finds that the Veteran has a current bilateral hearing disability for VA purposes. The dispositive issue is whether the Veteran's current hearing loss is related to his military service. The Veteran contends that exposure to noise during service caused his current bilateral hearing loss. The Veteran's service treatment records include results of the Veteran's February 1969 enlistment audiological examination, which indicate that the Veteran had a puretone threshold of 35 decibels at 4000 Hertz, bilaterally, although the 1969 audiogram is incomplete as no puretone thresholds were noted at 3000 Hertz. See Hensley, 5 Vet. App. at 157. During his separation examination in October 1970, the Veteran's hearing acuity reflected normal puretone thresholds for the right ear, Hensley, supra, but a puretone threshold of 25 decibels was measured at 4000 Hertz for the left ear, although, the 1970 audiogram is incomplete as no puretone thresholds were noted at 3000 Hertz. The Veteran's DD Forms 214 reflects that he served in the United States Army, with a military occupational specialty (MOS) of "Auto Repair Parts Specialist." During the hearing before the undersigned Veterans Law Judge in February 2019, the Veteran indicated that he was exposed to noise from firearms. See Board Hearing Transcript dated February 6, 2019 at pg. 15. Indeed, his DD Form 214 reflects that he qualified as an "Expert" with the M-16 assault rifle and as a "Sharpshooter" with the M-14 rifle. Additionally, the Veteran has asserted that no hearing protection was provided during service. See VA Hearing Loss and Tinnitus examination dated February 22, 2020. The Veteran's accounts of exposure to acoustic trauma from firearms during service are consistent with the circumstances, conditions, and hardships of his service and are, therefore, competent and credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during military service. In a VA examination report dated December 2011, the examiner opined that it is less likely than not that the Veteran's preexisting bilateral hearing loss was aggravated by service. See VA Hearing Loss and Tinnitus examination report dated December 6, 2011 at pg. 12. However, the examiner did not articulate his medical opinion utilizing the correct standards of review, i.e., where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service, as discussed above. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner, supra. As such, the December 2011 VA opinion is accorded little probative weight. The February 2020 VA opinion obtained pursuant to the Board's remand includes conflicting information. The VA examiner observed that the Veteran had bilateral hearing loss that preexisted enlistment in service, concluding that his hearing loss onset "or was at least aggravated during active duty service," and also that his preexisting hearing loss was not aggravated beyond normal progression during service. Adding to these deficiencies is the examiner's failure to express the opinion in terms of whether preexisting hearing loss "clearly and unmistakably" preexisted service, and if so, whether such preexisting hearing loss "clearly and mistakably" was not aggravated by service. See VA Hearing Loss and Tinnitus examination dated February 22, 2020 at pgs. 5-6. As such, the February 2020 VA opinion regarding preexisting hearing loss and aggravation is accorded little probative weight. As VA examiners have twice failed to apply the correct standard of review, and VA has failed in both instances to take corrective action, the Board finds that the presumption of soundness has not been rebutted in regard to the Veteran's hearing loss. 38 U.S.C. § 1111, 38 C.F.R. § 3.304; Wagner, supra; VAOPGCPREC 3-03 (July 16, 2003). As such, the presumption of soundness applies, and the Veteran's claim is considered as a normal service connection claim. As discussed above, the Veteran's service treatment records reflect bilateral hearing loss during service. Additionally, the Veteran is currently diagnosed with bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385; See VA Hearing Loss and Tinnitus examination dated February 22, 2020. The earliest evidence of the Veteran being diagnosed with sensorineural hearing loss is a private audiogram dated October 10, 2006. As such, the presumptive service connection provisions for the Veteran's bilateral hearing loss under 38 C.F.R. §§ 3.303(b), 3.309(a) are not for application. Nevertheless, the February 2020 VA examiner provided a favorable nexus opinion for the Veteran's bilateral hearing loss, opining that the Veteran's currently diagnosed bilateral hearing loss is at least as likely as not related to his documented in-service hearing loss, explaining that the Veteran's MOS had a high probability for noise exposure, the Veteran's exposure to gunfire qualifying as an Expert in the use of the M-16 assault rifle and as a Sharpshooter with the M-14 rifle, and he described attempting to use empty rifle shells for hearing protection during service as no ear protection was provided. See VA Hearing Loss and Tinnitus examination dated February 22, 2020. The February 2020 VA medical opinion is competent, credible and probative: It was authored by a state-licensed audiologist who reviewed the Veteran's claims file and was therefore familiar with the Veteran's symptoms, diagnoses, and treatment of his hearing loss; the opinion was based on examination and interview of the Veteran and review of the evidence of record as well as the Veteran's lay statements. The opinion is consistent with the medical evidence of record and contains clear conclusions with supporting data connected by a reasoned medical explanation. See Nieves-Rodriguez, 22 Vet. App. at 301-02. Notably, there are no medical opinions or other competent medical evidence of record that weighs against the February 2020 nexus opinion. Accordingly, the Board finds the February 2020 medical opinion finding a nexus between the Veteran's currently diagnosed bilateral hearing loss and acoustic trauma in service highly probative, competent and persuasive medical evidence in this case. Based on this body of evidence, the Board finds that the probative evidence of record, specifically the February 2020 VA nexus opinion establishes a nexus between the Veteran's current bilateral hearing loss and his service, and that entitlement to service connection is therefore warranted. Tinnitus The Board finds that the Veteran is currently diagnosed with recurrent tinnitus. See VA Hearing Loss and Tinnitus examination dated February 22, 2020 at pg. 7. Additionally, the Board has found that the Veteran was exposed to acoustic trauma from firearms during service, as discussed above. As such, the dispositive issue regarding the issue of entitlement to service connection for tinnitus is whether there is medical evidence of a nexus between the in-service acoustic trauma and the currently diagnosed recurrent tinnitus. See Shedden, 381 F.3d at 1167. Alternatively, service connection could be established where there is medical evidence demonstrating that the Veteran's recurrent tinnitus is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Here, the February 2020 VA examiner opined that the Veteran's tinnitus is at least as likely as not a symptom associated with his hearing loss, as the Veteran had a diagnosis of clinical hearing loss and tinnitus was identified as a symptom associated with his hearing loss. See VA Hearing Loss and Tinnitus examination dated February 22, 2020. Additionally, the examiner opined that the Veteran's tinnitus was at least as likely as not related to service as his MOS had a high probability for noise exposure, the Veteran's exposure to gunfire qualifying in the use of the M-16 assault rifle and the M-14 rifle resulted in acoustic trauma, and the Veteran used empty rifle shells in an attempt to protect his hearing since no ear protection was provided. Upon review of the evidence, the Board finds that the theories of direct and secondary service connection are both supported in this case. Clearly, the Veteran's in-service exposure to acoustic trauma and the February 2020 VA examiner's opinion that the currently diagnosed recurrent tinnitus is likely related to such trauma, and the examiner's finding that the Veteran's recurrent tinnitus is likely a symptom of his hearing loss are both valid theories upon which to grant service connection. Accordingly, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.303, 3.310; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that an additional remand is necessary for VA to readjudicate the TDIU claim in light of the Board's decision herein granting service connection for bilateral hearing loss and tinnitus. The record as presently developed does not include sufficient evidence upon which to adjudicate the Veteran's TDIU claim. Namely, no disability evaluations or effective dates have been assigned to the now service-connected bilateral hearing loss and tinnitus, granted herein, since the Board does not assign disability ratings or effective dates in the first instance. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Therefore, the issue of entitlement to a TDIU is remanded as intertwined with the as yet unrated service connection claims granted herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matter is REMANDED for the following action: 1. Implement the Board's decision herein granting service connection for bilateral hearing loss and tinnitus. 2. Then, after undertaking any additional development deemed necessary readjudicate the remanded claim for entitlement to a TDIU. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.