Citation Nr: 21011336 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-04 018 DATE: March 1, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s tinnitus began in service and has continued to the present. 2. The Veteran’s bilateral hearing loss was not shown as chronic in service, did not manifest to a compensable degree within the applicable presumptive period, and is not otherwise etiologically related to an in-service injury or disease, to include as secondary to his service-connected perforated left tympanic membrane. CONCLUSIONS OF LAW 1. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria to establish service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1969. This case was previously before the Board. Most recently in July 2020, the Board remanded the Veteran’s claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Hearing loss and tinnitus have been interpreted as such diseases. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Tinnitus The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the United States Court of Appeals for Veterans Claims specifically held that tinnitus is a condition which is capable of lay observation. The Veteran has credibly reported that his tinnitus began in service and has continued to the present. See November 1995 VA medical record. Because tinnitus is a condition capable of lay observation, and because the Veteran has credibly reported that his tinnitus began in service and has continued to the present, service connection for tinnitus is granted. 2. Bilateral Hearing Loss Hearing loss is determined for VA compensation purposes by way of audiological testing composed of puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. A hearing disability is shown when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or, when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 26 decibels or greater; or, when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Veteran contends that his current hearing loss is due to noise exposure during service and/or secondary to his service-connected residuals of a ruptured left eardrum. The Board finds that the first and second Shedden elements are met. The Veteran has bilateral hearing loss for VA purposes. See December 2020 VA examination report. Further, the Veteran was exposed to loud noise during service. Id. As a predicate matter, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s hearing loss manifested itself to a degree of 10 percent or more within a year of his discharge from service in 1969. The Board acknowledges the Veteran’s statement that he has had “progressive hearing loss and tinnitus” in his left ear since service. See November 1995 VA medical record. However, to the extent that the Veteran asserts that his current hearing loss disability is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed hearing loss disability, because he does not have the requisite medical knowledge or training, and because such matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Further, the Board notes that the Veteran’s audiometric examination at separation was normal. See October 1969 separation examination. The Veteran stated that he was uncertain as to the time of onset of hearing loss but said that it has been “progressive over a number of years.” See May 2011 VA examination report. Further, the first hearing evaluation of record demonstrating hearing loss is from January 1996, more than two decades after service. See January 1996 hearing evaluation. As such, the Board finds the evidence of record reflects the Veteran’s bilateral hearing loss did not occur within a year of separation as there is no chronicity of symptomatology. Ultimately, the Board finds that the third Shedden element has not been met. Although the Veteran is competent to report a loss of hearing perception, he is not competent to diagnose the etiology of the condition. Hence, an expert opinion is necessary to evaluate the Veteran’s claim. The December 2020 VA examiner opined that it was less likely than not that the Veteran’s current hearing loss was caused by or a result of an event in military service. The examiner reasoned that the Veteran had normal hearing at enlistment in 1967. He was involved in an explosion that perforated his left eardrum in 1968, but his hearing was tested in 1969 at separation, and it was normal and there were no threshold shifts compared to the enlistment audiogram. The May 2011 VA examination report stated the left ear perforation had resolved. The Veteran acknowledges he was a mechanic and a truck driver after his service in the military which carries some noise exposure. The testing completed showed a bilateral, symmetrical sensorineural hearing loss. There was no perforation in the left ear at time of examination based on otoscopic exam and immittance testing. Based on this rationale, the examiner ultimately concluded that the Veteran’s hearing loss was not likely to have been due to hazardous noise in the military. The Board acknowledges that the VA examiner relied, in part, on a lack of hearing loss diagnosis during service. Section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. See Hensley at 157. That case does not state, however, that the lack of a diagnosis cannot be considered as a factor in determining whether a nexus exists. Here, the examiner fully reviewed the record, and specifically noted the Veteran’s service and post-service history. The Veteran’s lay statements were considered. However, on review of the entire record, in the examiner’s opinion, a relationship was not established. Because the examiner considered more than just the lack of a diagnosis in service, the Board finds that the opinion is, in fact, adequate for the purpose of deciding this claim. Turning to the secondary service connection claim, the Board finds that the first and second Wallin elements have been met. As discussed above, the Veteran has bilateral hearing loss for VA purposes. See December 2020 VA examination report. Further, he is service connected for a perforated left tympanic membrane. See September 1995 rating decision. However, the December 2020 VA examiner also opined that the Veteran’s hearing loss was less likely than not proximately due to or aggravated beyond its natural progression by his service-connected residuals of a ruptured left eardrum. See December 2020 VA examination report. The examiner reasoned that the Veteran experienced a ruptured eardrum in 1968 due to an explosion. The examiner emphasized that the May 2011 VA examination report stated that the ENT found the perforated eardrum was resolved as evidenced by normal hearing thresholds in the left ear, and a normal tympanogram and immittance results for the left ear. She added that results from the current testing showed no left ear perforation and a symmetrical bilateral hearing loss. Given the above, the examiner concluded that the Veteran’s hearing loss was not likely proximately due to or aggravated beyond its natural progression by his ruptured left eardrum and residuals. Id. Thus, the Board finds that the third Wallin element has not been met and service connection cannot be granted on a secondary basis. Substantial probative weight is afforded to the opinion of the December 2020 VA examiner. The opinion was conducted by a qualified medical professional, based upon review of evidence in the record, and included an in-person examination of the Veteran. The opinion was supported by adequate rationale. Accordingly, the Board finds that continuity of symptomatology has not been demonstrated and service connection for bilateral hearing loss is not warranted on a direct or secondary basis. 38 C.F.R. § 3.303(b). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.