Citation Nr: 21012670 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-61 054 DATE: March 4, 2021 ORDER Service connection for left ear hearing loss is granted. Service connection for depressive disorder is granted. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss is etiologically related to active duty service. 2. The Veteran’s depressive disorder (also claimed as insomnia) is caused by his service-connected disability of tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for depressive disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from May 1963 to November 1963. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2020. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). 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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009), see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be also 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) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); Wallin v. West, 11 Vet. App. 509, 512 (1998). A lay person is competent to report on the onset and reoccurrence of his current symptomatology. See 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). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for left ear hearing loss. The Veteran claims entitlement to service connection for a left ear hearing loss disability. 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. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA’s definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) With regard to the threshold issue of a current disability, audiometric testing results from a March 2017 examination shows hearing loss for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the March 2017 audiological exam revealed the following puretone thresholds, in decibels: Hertz 500 1000 2000 3000 4000 LEFT 5 10 50 75 75 Maryland CNC speech recognition testing was 94 percent in the left ear. The puretone average was 52.5. The Veteran’s left ear hearing loss is of sufficient severity to meet the VA definition of a hearing loss disability. See 38 C.F.R. § 3.385. Specifically, the Veteran’s auditory threshold is at least 26 decibels in the frequencies 2000, 3000 and 4000 Hertz. Accordingly, the Board finds that the first element of service connection is established. See Holton, 557 F.3d at 1366. The Veteran testified presented sworn testimony that he was exposed to an unprotected gun shot from an M-1 while on active duty. See December 2020 Board Transcript. The Veteran’s service treatment records also note complaint of injury following from rifle fire. In-service injury is conceded based on the Veteran’s credible reports that he was exposed to acoustic trauma during service. Regarding the element of nexus, the Board finds that the evidence is at least in equipoise. Here, the Veteran underwent a VA audiological examination in March 2017, and the examiner opined that the Veteran’s left ear hearing loss was not at least as likely as not caused by or a result of an event in service, rationalizing that the Veteran did not show hearing loss until three years after separating from the military. However, the examiner failed to consider the Veteran’s credible reports of in-service noise exposure and immediate decline in hearing acuity. Accordingly, the opinion is inadequate, and the Board affords it little probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). During a previous October 2016 evaluation, a private examiner conducted an audiometric evaluation of the Veteran and found left ear hearing loss that the examiner attributed to noise exposure during service. See Private Treatment Record dated October 2016. When the evidence for and against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran’s favor, the Board finds that the third element of service connection is established. See Holton, 557 F.3d at 1366. Thus, service connection for left ear hearing loss is warranted. 2. Entitlement to service connection for depressive disorder The Veteran states that he has a psychiatric disorder, to include a depressive disorder that is related to service, or, more specifically, that is related to his service-connected tinnitus. The Veteran specifically maintains that he suffered from depression due to tinnitus, which affected his marriage as well as his faith. In its role as a finder of fact, the Board finds the Veteran’s account both competent and credible. The Veteran was afforced a VA examination in development of this claim. A March 2017 VA psychiatric examination report includes a notation that the Veteran’s VA e-folder was reviewed. The Veteran was diagnosed with depressive disorder due to tinnitus. The examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran’s service-connected condition. The identified symptoms of depressive order due to tinnitus, included depressed mood, and anxiety. As to nexus, the examiner ultimately found that the Veteran’s depressive disorder due to tinnitus was less likely than not proximately due to or the result of the Veteran’s “service-connected disorder”. The examiner stated that the Veteran does not meet the current criteria for diagnosis of insomnia. While the examiner did not specifically opine as to whether the Veteran’s depression is etiologically related to his service-connected tinnitus, the diagnosis of depressive disorder due to tinnitus describes the etiological relationship between the Veteran’s diagnosed tinnitus and depressive disorders. In light of the evidence of record, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a psychiatric disorder on a secondary basis. The Board therefore finds that the Veteran’s psychiatric disorder, diagnosed as a depressive disorder due to tinnitus, is due to or the result of his service-connected tinnitus. Thus, secondary service connection is warranted. See 38 C.F.R. § 3.310. (Continued on the next page)   Because the Veteran’s depressive disorder was caused by his service-connected tinnitus, service connection is warranted. The appeal is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.