Citation Nr: 21007901 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-15 906 DATE: February 11, 2021 ORDER Service connection for left ear hearing loss is denied. Service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran’s pre-existing left ear hearing loss was aggravated beyond natural progression by active service. 2. Resolving all reasonable doubt in the Veteran’s favor, his bilateral tinnitus is at least as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1983 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied service connection for left ear hearing loss and tinnitus. In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes hearing loss and tinnitus, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Left ear hearing loss The Veteran seeks service connection for left ear hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) 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. A January 2015 VA audiological examination report indicates that the Veteran has left ear hearing loss for VA purposes. Thus, the current disability prong of the claim has been met. Further, the Veteran contends that his military occupation specialty (MOS) as an aircraft electrical/mechanical equipment repairman contributed to his current hearing loss. The Board acknowledges that this MOS is commonly associated with hazardous noise exposure. Thus, the in-service event element has also been met. The issue of whether the Veteran’s current left ear hearing loss is related to his active service remains. Unfortunately, the Board finds, based on the evidence, that service connection for left ear hearing loss is not warranted. The Veteran’s service treatment records (STRs) indicate left ear hearing loss upon entry. Audiometric testing upon entrance examination reveal values of 10 at 500 Hertz (Hz), 40 at 1000 Hz, 35 at 2000 Hz, 10 at 3000 Hz, 0 at 4000 Hz, and 5 at 6000 Hz. As such, the Board finds that Veteran’s left ear hearing loss existed prior to active service and is thus, a preexisting condition. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). “[I]f 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.” Wagner, 370 at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235, n. 6; 38 U.S.C. § 1153. Here, the Veteran’s pre-existing left ear hearing loss was noted upon entry into service, and the Board reads his lay contentions as competent assertions that his bilateral hearing loss increased during active service. The Veteran’s STRs also indicate audiometric testing while in service. In February 1985, the Veteran’s left ear audiometric testing data showed values of 20 at 500 Hz, 45 at 1000 Hz, 35 at 2000 Hz, 20 at 3000 Hz, 10 at 4000 Hz, and 10 at 6000 Hz. In March 1985, his audiometric testing data showed values of 15 at 500 Hz, 45 at 1000 Hz, 35 at 2000 Hz, 15 at 3000 Hz, 20 at 4000 Hz, and 10 at 6000 Hz. Accordingly, between the February and March 1985 testing data, threshold shifts showed improvement of -5 at 3000 Hz and worsening of 10 at 4000 Hz. Upon separation, audiometric testing revealed values of 10 at 500 Hz, 40 at 1000 Hz, 35 at 2000 Hz, 10 at 4000 Hz, and 0 at 6000 Hz. Accordingly, the Veteran’s threshold shifts between entrance and separation showed worsening of +10 at 3000 Hz and +10 at 4000 Hz, with improvement of -5 at 6000 Hz. According to post-service medical records, the Veteran underwent VA audiological examination in January 2015. The examiner diagnosed left ear sensorineural hearing loss. The examiner noted that the Veteran had left ear hearing loss prior to service and opined that his left ear hearing loss was not aggravated beyond normal progression in military service. The basis of the examiner’s conclusion was the fact that the Veteran’s left ear hearing loss did not change during his military service but, rather, was shown to improve slightly. The examiner noted that entrance and exist audiograms do not show a significant threshold shift while in the military. As such, the examiner opined that it less likely than not that the Veteran’s hearing loss was caused by his active service. Also included in the record is a January 2016 VA primary care note and corresponding letter from examiner Dr. C.A. who opined that the Veteran’s left ear hearing loss was more likely than not due to acoustic trauma from exposure to jet blasts in the military. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his\her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, while the January 2016 private opinion gives a positive nexus opinion between the Veteran’s left ear hearing loss and his active service, the Board does not find the opinion probative. The examiner stated that her opinion was based on the Veteran’s documented hearing loss and his own account that his left ear hearing loss developed during his time in service. However, the examiner does not state whether the opinion was based on review of the Veteran’s pertinent medical records. Further, the examiner did not provide a basis for her medical opinion. Thus, the Board assigns little probative weight to this opinion. In contrast, the Board finds that the January 2015 VA examination holds significant probative weight. The examiner based her opinion upon review of the medical records, consideration of Veteran’s reported history, and performance of an examination. In doing so, she opined that the Veteran’s left ear hearing loss was not aggravated beyond normal progression in military service since hearing loss did not significantly change during military service. Therefore, the Board finds this opinion to be significantly probative. In light of the probative evidence of record, the record does not support the claim for service connection for left ear hearing loss. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the preponderance of the evidence is against the claim, the claim must be denied. Tinnitus At the December 2020 Board hearing, the Veteran asserted that his tinnitus began in active service and that he has experienced this symptomatology since that time. Service treatment records do not show any complaints, findings, or diagnoses of tinnitus, including ringing in the ears. Despite these negative findings, however, the Veteran testified at the recent hearing that he complained of ringing in his ears at separation from service. At the January 2015 VA examination, the Veteran reported that the onset of his tinnitus was approximately 1986, shortly before his discharge from military service. He described the frequency as occurring daily, lasting hours to days and affecting both ears. The examiner opined that the Veteran’s current tinnitus is not due to, or a result of, in-service noise exposure, based on the conclusion that his left ear loss was not related to service and that there was no documentation for in service complaints for tinnitus. While there is no objective evidence of tinnitus in service, the Veteran asserts that he developed tinnitus in service and essentially has had frequent tinnitus since service. Although the record contains an April 2014 medical history note indicating the onset of the tinnitus to three to four years prior to April 2014, the Veteran’s claim specifically noted an in-service onset. The Veteran is competent to give evidence about observable symptoms such as tinnitus and noise exposure. Layno, 6 Vet. App. 465. As noted above, the Veteran was an aircraft electrical/mechanical equipment repairman, and noise exposure has been conceded. While the Board appreciates the examiner’s opinion, the main reason for the negative opinion was that the Veteran’s hearing loss was determined not to be related to service and that the tinnitus was found secondary to that hearing loss. In light of the above, and resolving reasonable doubt in the Veteran’s favor, the Board finds that his tinnitus at least as likely as not began during active service. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. Thus, service connection for tinnitus is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.