Citation Nr: 21072589 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-22 284 DATE: December 3, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence does not establish a diagnosis of left ear hearing loss for VA purposes at any time during the current appeal. 2. The evidence is in relative equipoise as to whether the Veteran's right ear hearing loss is related to noise exposure during active service. 3. The evidence shows the Veteran's tinnitus began during service and is related to his hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. 2. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from July 1972 to September 1978, from April 1979 to November 1989, and from February 1991 to March 1991. The Veteran died in January 2021. In February 2021, the Board dismissed the Veteran's appeal. The appellant is the Veteran's surviving spouse and was accepted as the Veteran's substituted claimant in March 2021 after the Board dismissal, for the specific claims of hearing loss and tinnitus. In a November 2018 rating decision, the RO granted a TDIU rating, effective the date of the original claim received on November 7, 2011. This issue has been granted in full, and the Appellant has not been substituted for this claim. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38U.S.C. §§1110, 1131; 38C.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. 38C.F.R. §3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hearing loss and tinnitus are "chronic" diseases under 38C.F.R. §3.309(a); therefore, the presumptive service connection provisions under 38C.F.R. §3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38C.F.R. §3.303(b). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases such as hearing loss and tinnitus 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. 38U.S.C. §§ 1101, 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 during that time. 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, 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. See 38 C.F.R. § 3.385. 1. HEARING LOSS The Veteran contended that he experienced hearing loss related to his active service. The Board finds the Veteran does not have hearing loss for VA compensation purposes in the left ear. The Board also finds the evidence is in relative equipoise concerning whether the Veteran's right ear hearing loss is related to active duty. In-service audiometry testing revealed mild hearing loss at high decibels at the time of separation. He earned sharpshooter and pistol marksman badges, and worked as a recruiter and an accounting technician during service. In a January 2012 statement, Dr. S.H. noted the Veteran's contention that his hearing loss and tinnitus developed during active service. On VA examination in January 2015, the Veteran was afforded an air conduction study. Pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 30 45 LEFT 15 15 30 25 30 The pure tone threshold average (of the thresholds 1000, 2000, 3000, and 4000 Hertz) for the right ear was 30 decibels, and the left ear was 25 decibels. The Veteran's speech discrimination scores were 100 percent, bilaterally. The examiner opined that while the Veteran has mild bilateral hearing loss, it was less likely than not a result of exposure during active service. The examiner remarked that the Veteran only showed mild hearing loss at his exit examination, and reported work in construction and recreational noise exposure after active service. The examiner further explained that the additional hearing loss since his separation from service is consistent with the noise exposure the Veteran reported both recreationally and professionally. In her November 2021 Brief, the Appellant argued that the January 2015 examination and opinion was inadequate, challenging the competence of the examiner for failing to properly consider the Veteran's competent lay evidence. After review, the Board finds there is no evidence that the examination or examiner as a whole were inadequate. Initially, the Board notes that the Veteran did not have left ear hearing loss for VA purposes. On examination, the clinical findings did not show auditory thresholds at 26 decibels or greater in at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz, or a single threshold of greater than 40 decibels any of those five frequencies. Further, the CNC speech scores were greater than 94 percent. As such, there is no disability in the left ear for which service-connection can be granted. See 38 C.F.R. § 3.385. There is no doubt of material fact to be resolved in the Veteran's favor, and the claim for service connection for left ear hearing loss must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For the right ear, hearing loss for VA purposes has been established by the January 2015 examination. The Board notes that the Veteran is competent to report the symptoms he experienced, including difficulty hearing. His assertions that his hearing loss developed during service were acknowledged by the examiner, however, the examiner determined that the Veteran's mild hearing loss during service was not related to his current hearing loss, instead attributing the current symptoms to post-service noise exposure. The Board finds this rationale to be inadequate, in that it did not explain why the mild hearing loss that occurred during service was unrelated to current hearing loss. The Veteran's lay assertion that the worsening of his hearing acuity began during service is supported by the evidence of record, including the January 2015 examination report which noted mild hearing loss at separation. The fact that his hearing continued to worsen was not addressed by the examiner. The Board finds that based on the examination and the Veteran's assertions, the evidence is in relative equipoise concerning the etiology of the Veteran's right ear hearing loss, and therefore, service connection is warranted. 2. TINNITUS The Veteran contends that his tinnitus is related to active service. The Board finds the Veteran's tinnitus warrants service connection. On VA examination in January 2015, the Veteran reported that he started experiencing tinnitus after being on the firing range during service without hearing protection. He stated he continued to experience tinnitus, distracting him, and disturbing his sleep. The examiner stated that tinnitus was at least as likely as not related to the Veteran's hearing loss. The Board finds that based on the Veteran's report of tinnitus beginning during service, and the examiner's statement that tinnitus was related to his hearing loss, and because right ear hearing loss has now been service-connected, the Veteran's tinnitus warrants service connection. Accordingly, the claim is granted. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.