Citation Nr: 21076146 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-54 641 DATE: December 22, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his right ear hearing loss is at least as likely as not related to in-service noise exposure. 2. Left ear hearing loss was aggravated by service. 3. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 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, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to June 1989, and from November 1990 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. The Veteran was afforded the opportunity to submit supporting medical documentation within a 90 day window subsequent to the hearing, but no such evidence has been received. Service Connection Service connection laws and regulations Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). The presumptive chronic diseases include organic diseases of the nervous system, to include sensorineural hearing loss and tinnitus associated with acoustic trauma. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 40 decibels or more; or when the thresholds for at least three of these frequencies 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 Court 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 auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Id. at 159. The provisions of 38 U.S.C. § 1111 indicate that every Veteran shall be taken 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 the examination, acceptance, or enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. The Board also notes that there is a General Counsel Opinion on the matter of rebutting the presumption of sound condition on service entrance. See VAOPGCPREC 3-2003 (July 16, 2003). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual summary Turning to the evidence, service treatment records (STRs) include an entrance examination audiogram conducted in November 1990. The pure tone thresholds, in decibels, were as follows: 11/08/1990 HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 25 LEFT 10 0 0 0 40 STRs include a reference audiogram conducted in January 1996. It was indicated that the Veteran was routinely exposed to hazardous noise during military service. The pure tone thresholds, in decibels, were as follows: 01/17/1996 HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 0 10 LEFT 5 0 0 5 10 Notably, STRs do not reflect any symptoms, diagnosis, or treatment for tinnitus. An April 2017 private treatment record reveals that the Veteran reported difficulty hearing when the speaker is at a distance, when the conversation takes place in a noisy environment, and/or when watching television. He also reported constant tinnitus bilaterally. The Veteran's pure tone thresholds, in decibels, were as follows: 04/13/2017 HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 50 LEFT 15 15 15 45 70 The Board acknowledges that the April 2017 private treatment record includes graphical audiogram results which were never converted by the RO. However, the Board converted the results into numeric form as demonstrated above. The private treatment record noted that "Speech Discrimination testing at patient's Most Comfortable Loudness level revealed excellent speech recognition abilities in quiet." The results reveal speech recognition was 100 percent. However, the results do not specify the type of speech discrimination score test used. Examinations for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test compliant with Maryland CNC and a Puretone audiometry test. 38 C.F.R. § 4.85. In this case the Maryland CNC was not used, thus the speech discrimination score is less probative. There was a diagnosis of bilateral sensorineural hearing loss. After considering the Veteran's self-reported exposures while in-service to constant noise from generators, high pitched noise from communications equipment, noise from two to five ton vehicles, and noise from various weapons, the private audiologist opined that his bilateral hearing loss is more likely than not related to military service, to include as due to hazardous noise exposure. In July 2017 the Veteran underwent a VA hearing loss and tinnitus examination. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 07/31/2017 HERTZ 500 1000 2000 3000 4000 CNC RIGHT 25 20 25 40 50 94 25 25 25 25 50 75 96 There was a diagnosis of bilateral sensorineural hearing loss and tinnitus. Regarding the right ear, the examiner opined it is less likely than not that his right ear hearing loss was caused by or a result of an event in military service because he had pre-existing hearing loss at enlistment and STRs did not include any significant threshold shift in service that would indicate aggravation of his pre-existing condition. Regarding the left ear, the examiner opined it is less likely than not that his left ear hearing loss was caused by or a result of an event in military service because he had pre-existing hearing loss at enlistment and STRs did not include any significant threshold shift in service that would indicate aggravation of his pre-existing condition. Regarding tinnitus, the Veteran reported constant ringing in both ears since 1991-1992. The examiner found that the Veteran has a diagnosis of clinical hearing loss, and his tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner opined that his tinnitus is less likely than not caused by or a result of military noise exposure because it is more likely than not a symptom associated with his hearing loss, which is not service connected. Moreover, he did not incur any significant threshold shifts in service that would suggest acoustic trauma sufficient to cause tinnitus. In August 2021, the Veteran testified that he was routinely exposed to hazardous noise while in the military, to include high humming noise on a daily basis or noise from 35-gig generators. 1. Entitlement to service connection for right ear hearing loss The Board finds that the evidence is at least in equipoise as to whether the Veteran's right ear hearing loss is related to in-service noise exposure. The Board recognizes that the Veteran was diagnosed with bilateral hearing loss for VA ratings purposes under 38 C.F.R. § 3.385. Additionally, the Board finds that the Veterans credible testimony from the August 2021 hearing regarding exposure to acoustic trauma while in service is supported by STRs. Here, his January 1996 audiogram indicated the Veteran was routinely exposed to hazardous noise. This demonstrates that he likely experienced acoustic noise trauma while in the service. Thus, the first and second elements of service connection are established. See Shedden, 381 F.3d at 1167. As to a medical nexus, the Board acknowledges the July 2017 VA examination; however, in rendering a nexus opinion, the examiner did not rely on accurate facts. Specifically, that the Veteran had right ear hearing loss prior to service. This is not supported by the record. Additionally, the examiner did not consider the January 1996 STRs which indicated the Veteran was routinely exposed to hazardous noise. As such, the July 2017 VA opinion is of limited probative value. In light of the foregoing, the Board finds that the April 2017 private opinion, which was provided after the audiologist considered the Veteran's in-service exposure to hazardous noise and examined the Veteran, is probative. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Affording all benefit of the doubt to the Veteran, to include his testimony of acoustic trauma while in service, the evidence is at least in equipoise as to whether the Veteran's right ear hearing loss was caused by service. For these reasons, the Board finds that right ear hearing loss was caused by service. Accordingly, the claim for service connection for right ear hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for left ear hearing loss In this case, there is a question as to whether the Veteran's left ear hearing loss manifested during his military service from January 1989 to June 1989, and from November 1990 to March 1998. The November 1990 entrance examination audiogram reveals that at 4000 Hertz, the Veteran's pure tone thresholds of his left ear measured as 40 decibels. Under 38 C.F.R. § 3.385, this is hearing loss. Nonetheless, the entrance examination is absent of any notations of defects, infirmities, or disorders. In fact, it was determined that the Veteran was qualified for service. Moreover, the January 1996 in-service audiometric examination revealed hearing within normal limits. Based on the foregoing, the Board finds that the Veteran is entitled to the presumption of soundness for the left ear. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Under the first prong, there is clear and unmistakable evidence that the Veteran's left ear hearing loss preexisted service. In pertinent part, the November 1990 entrance examination reveals his left ear measured at 40 decibels at 4000 Hertz. Under 38 C.F.R. § 3.385, this is hearing loss. While there is evidence to rebut the first prong of the presumption of soundness as the Veteran's left ear hearing loss pre-dated service, there is not ample evidence to rebut the second prong of the presumption of soundness. Under the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Here, there is not clear and unmistakable evidence that preexisting left ear hearing loss was not aggravated during service. To the contrary, the Veteran credibly testified during the August 2021 hearing that he was exposed to acoustic trauma while in service. STRs from January 1996 support exposure to hazardous noise. As such, the Board finds he was exposed to acoustic trauma. Because his November 1990 entrance examination explicitly noted that no hearing defect existed, he is presumed sound upon entry. While the audiometric testing conducted at induction clearly and unmistakably establishes pre-existing left ear hearing loss, there is no affirmative evidence that his hearing loss was not aggravated. Indeed, the evidence indicates that he was exposed to acoustic trauma. Therefore, the Board finds that there is no clear and unmistakable evidence against aggravation, and the Veteran's left ear hearing loss is therefore presumed aggravated by service. Accordingly, the claim for service connection for left ear hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for tinnitus The Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to in-service noise exposure. The Board recognizes that the Veteran was diagnosed with tinnitus. Additionally, the July 2017 VA examiner found that the Veteran has a diagnosis of clinical hearing loss, and his tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Similar to sensorineural hearing loss, tinnitus is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured." Fountain, 27 Vet. App. at 266 (2015) (quoting VA Training Letter 10-02). More specifically, in Fountain, the Court referenced VA Training Letter 10-02, in addition to other medical and legal authority, and noted that chronic sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, were considered conditions listed under 38 C.F.R. § 3.309(a), were due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain, and were commonly caused by chronic exposure to excessive noise, in addition to age-related hearing loss. The Court noted that chronic sensorineural hearing loss and tinnitus caused by acoustic trauma resulted in damage to the inner ear and was an organic disease of the nervous system under 38 C.F.R. § 3.309. Because the Veteran sustained trauma that caused the service-connected hearing loss, by necessary logical inference, the current tinnitus is likely related to the same trauma. The Board finds that, based upon both medical and legal authority, the in-service acoustic trauma reasonably leads to the conclusion that current tinnitus is related to service. For the reasons discussed above and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted as directly related to service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.