Citation Nr: 21011082 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 20-17 043 DATE: February 26, 2021 ORDER The severance of service connection for bilateral hearing loss, effective May 1, 2019, was not proper, and the appeal is granted. The severance of service connection for tinnitus, effective May 1, 2019, was not proper, and the appeal is granted. FINDINGS OF FACT 1. The evidence of record does not establish that the award of service connection for bilateral hearing loss was clearly and unmistakably erroneous. 2. The evidence of record does not establish that the award of service connection for tinnitus was clearly and unmistakably erroneous. CONCLUSIONS OF LAW 1. The severance of the award of service connection for bilateral hearing loss was not proper. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.105(d), 3.303. 2. The severance of the award of service connection for tinnitus was not proper. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.105(d), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had period of active duty for training (ACDUTRA) in the U.S Army Reserve from January 1967 to May 1967 with additional inactive and active duty for training through 1971 and 1973 to 1979 with a discharge from the Reserve in 1984 . These matters come before the Board of Veteran’s Appeals (Board) on appeal from a February 7, 2019, rating decision by the Regional Office (RO). The Veteran provided testimony before the undersigned Veterans Law Judge in January 2021 and a hearing transcript is associated with the record. At the Board hearing, the undersigned Veterans Law Judge informed the Veteran that the record would be held open for an additional 30 days for the Veteran to submit additional evidence. As the 30 days has expired and the Veteran has not submitted additional evidence to date, the Board will proceed with the appeal. 1. The severance of service connection for bilateral hearing loss, effective May 1, 2019, was not proper, and the appeal is granted. 2. The severance of service connection for tinnitus, effective May 1, 2019, was not proper, and the appeal is granted. A February 2019 rating decision severed service connection for bilateral hearing loss and tinnitus, effective from May 1, 2019. The Veteran appeals herein. VA regulations provide that “service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous.” The three-part test to determine whether a prior decision is the product of clear and unmistakable error is as follows: (1) “Either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)); Wilson v. West, 11 Vet. App. 383, 386 (1998). The mere misinterpretation of facts does not constitute clear and unmistakable error. See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The error must be one which would have manifestly changed the outcome at the time that it was made. See Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993). “It is a kind of error, of fact or of law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds cannot differ, that the results would have been manifestly different but for the error.” Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 38 C.F.R. § 3.105(d) does not limit the reviewable evidence to that which was before the RO in making its initial service connection award. In fact, 38 C.F.R. § 3.105(d) specifically provides that “[a] change in diagnosis may be accepted as a basis for severance,” clearly contemplating the consideration of evidence acquired after the original granting of service connection. Daniels v. Gober, 10 Vet. App. 474, 480 (1998). For disability in effect for less than 10 years, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). Here, the Veteran’s disability was in effect since 2015, or less than 10 years, and as such the additional protections set forth in 38 C.F.R. § 3.105(b) do not apply. Certain additional procedural requirements apply where service connection is to be severed, and if they are not followed, the severance of service connection is generally void ab initio. Specifically, a rating proposing severance must be prepared setting forth all material facts and reasons. The Veteran must be notified at his or her latest address of record of the contemplated action and the detailed reasons and must be given 60 days to present additional evidence to show that service connection should be maintained. 38 C.F.R. § 3.105(d). The Veteran may also request a hearing within 30 days of receiving notice. 38 C.F.R. § 3.105(i). In this case, the Veteran was afforded the appropriate due process. A rating decision was issued in September 2018 that proposed to sever service connection for bilateral hearing loss and tinnitus, setting forth the detailed reasons for the proposal. The Veteran was notified of this determination and his right to present additional evidence or request a hearing in a September 2018 letter. As noted above, the February 2019 rating decision was issued that severed service connection for bilateral hearing loss and tinnitus, effective more than 60 days thereafter, and explained the reasons for finalizing the severance of service connection. Turning to the evidence of record, at the January 2021 Board hearing, the Veteran testified that he was a manual gun puller and that during training he was exposed to artillery fire, to include while performing his duties in food service, as the food services station was in close proximity to the artillery training. He stated that he was not exposed to additional hazardous noise exposure after service. A January 2016 VA audiological examination indicates that the Veteran’s pure tone thresholds, in decibels, and speech discrimination scores were as follows: HERTZ Speech discrimination 1000 2000 3000 4000 Average RIGHT 50 70 75 80 69 80 LEFT 45 65 80 85 69 94 Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The audiologist opined that it is as likely as not that the Veteran’s current hearing loss was caused, at least in part, by his active duty noise exposure. She noted review of the service treatment records (STRs) and noted there was a worsening of hearing acuity between the audiometric hearing test completed in March 1967, labeled “REFRAD,” (relief from active duty) and the test of February 1980, labeled “Quadrennial.” She explained that the change is more than what would be considered a normal variation or natural progression of hearing and that the likely cause of the change was the Veteran’s exposure to noise. Regarding tinnitus, the audiologist provided a diagnosis of tinnitus and opined that the Veteran’s tinnitus was, as likely as not, caused by his active duty (AD) noise exposure and that it can occur as a result of noise exposure and/or acoustic trauma. She explained that the Veteran’s hearing worsened during his AD years and the Veteran reported onset of tinnitus during his AD and it is known that the Veteran was exposed to extreme hazardous noise. Service connection for bilateral hearing loss and tinnitus was granted in a March 2016 rating decision. In the September 2018 rating decision, the RO proposed to sever service connection for bilateral hearing loss and tinnitus based upon clear and unmistakable error. The RO explained that the Veteran’s bilateral hearing loss was not related to his in-service noise exposure. The RO noted the January 2016 VA opinion noted that the Veteran’s “many” years of service caused his hearing loss, however, the RO pointed out that the Veteran only had active duty for training from May 13, 1967 to January 8, 1968 (as noted above, the Veteran served ACDUTRA from January 1967 to May 1967) and that the rest of his service was in the Army Reserve. Thus, a medical opinion was obtained in August 2018. The audiologist who authored the 2016 VA positive opinion provided a negative nexus opinion in August 2018 as to the Veteran’s bilateral hearing loss and tinnitus. Regarding the Veteran’s bilateral hearing loss, the audiologist explained that the Veteran’s STRs were reviewed and that a previous opinion was given comparing the “Ref-rad” hearing test from March 1967 and a “Quadrennial” hearing test dated in February 1980. The audiologist noted that the February1980 hearing test could not be found and that a July 1971 “Quadrennial” physical is the first hearing test in the STRs after AD for training. She explained that the hearing on the July 1971 test showed no significant worsening of hearing acuity when compared to the hearing test completed on the test prior to AD for training in March 1967. She explained that because hearing loss due to noise occurs at the time of the exposure and not subsequently, the Veteran’s current hearing loss is less likely as not (less than 50 percent probability) a result of noise exposure during active duty during training. With regard to the Veteran’s tinnitus, she indicated that the Veteran’s service treatment records were reviewed and that there was no evidence of tinnitus treatment or complaints in the Veteran’s service treatment records. The clinician also noted absence of a report of a specific noise event or injury on active duty that initiated tinnitus. In addition, the audiologist concluded that the records revealed no significant changes in hearing from March 30, 1967 to July 12, 1971 (incorrect dates), years after Active Duty training. She opined it is less likely as not that tinnitus is related to noise exposure during his Active duty training period from May 13, 1967 to January 8, 1968 (incorrect dates), and there is no evidence of ear damage from noise in the service treatment records. The RO found severance was based upon clear and unmistakable error. This decision was finalized in February 2019. The Board notes that the Veteran’s audiological examination in March 1967 is presumed to be reported in standards set forth by the American Standards Association (ASA). Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO (International Organization for Standardization) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. The Board notes that the VA audiologist who provided the negative August 2018 opinion did not convert the Veteran’s in-service audiological examination prior to October 31, 1967, into ISO units. Further, a record of a quadrennial physical examination dated February 11, 1980 is in the file, has a record of audiometric testing and should have been considered by the examiner as well as his documented additional training participation from 1971 to 1979. Based upon the evidence of record, the Board finds that the grant of service connection for bilateral hearing loss and tinnitus was not clearly erroneous. Looking at the current evidence of record, there is evidence for and against service connection, specifically, the VA examination in January 2016, found that the Veteran had a diagnosis of hearing loss and tinnitus and it was at least as likely as not a symptom associated with exposure to acoustic trauma during service. Given the absence of a finding that the March 1967 audiometric testing was not converted to ISO, the Board finds that the 1967 test results used the ASA standard. From the Board’s lay reading of the data, the Veteran’s hearing reached 30 decibels at 500 Hertz in the right and left ears, 25 decibels at 1000 and 2000 Hertz in the right and left ears, and 30 decibels in the right ear and 35 decibels in the left ear at 4000 Hertz, if the 1967 test was in the ASA standard and if it required conversion to ISO standards. Here, the test results ranging from 25 to 35 decibels at 500-4000 Hertz in the right and left ears indicate some degree of hearing loss during service. See Hensley v. Brown, 5 Vet. App. 155, 158 (1993) (noting that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss). Further, a hearing loss claim may still be granted even if hearing impairment for VA purposes was not shown in service. See id. Accordingly, it cannot be said that the evidence clearly and unmistakably demonstrates that the Veteran’s bilateral hearing loss disability is not related to his service, and service connection for bilateral hearing loss is, therefore, restored. With regard to tinnitus, the 2016 VA examination report shows a diagnosis of tinnitus and the examiner concluded that the Veteran’s tinnitus is related to his acoustic trauma during service. The Veteran reported he experienced ringing in his ears and feeling plugged up during the first years from 1967 to 1969 during the VA examination. At the January 2021 Board hearing, the Veteran testified that he was a manual gun puller and that during training he was exposed to artillery fire, to include while performing his duties in food service, as the food services station was in close proximity to the artillery training. Notably, the Veteran’s DD-Form 214 indicates the Veteran decorations, badges, etc., includes a sharpshooter M-14 rifle designation. The Board finds he is competent to report such observations and symptomology and that he is credible absent evidence to the contrary. Lay assertions of symptomatology or injury may suffice where the determinative issue is not medical in nature. Falzone v. Brown, 8 Vet. App. 398, 406 (1995). In severing service connection, the RO did not specifically address the Veteran’s allegation that his tinnitus started in service. Although the August 2018 VA opinion relied on the lack of complaints of tinnitus or injury during service, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone as a purely subjective sensation. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records to provide negative opinion). At the time of the March 2016 rating decision which awarded service connection for tinnitus, there was credible lay evidence of the onset of tinnitus in service. Thus, the Board finds that the March 2016 rating decision which awarded of service connection for tinnitus was not clearly and unmistakably erroneous as there was competent evidence that tinnitus first began during active service. Service connection for tinnitus, therefore, is restored. For the Board to determine that the March 2016 grant of service connection for bilateral hearing loss and tinnitus was clearly and unmistakably erroneous, reasonable minds could not differ on whether the bilateral hearing loss and tinnitus was caused by the in-service noise exposure. As VA has not met the high evidentiary burden of showing clear and unmistakable error, the severance of service connection for bilateral hearing loss and tinnitus effective May 1, 2019, was improper, and service connection must be restored as of that date. In sum, as the determination to award service connection for bilateral hearing loss and tinnitus was not clear and unmistakable error, severance was improper, and restoration of service connection for bilateral hearing loss and tinnitus is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.