Citation Nr: 21021300 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-14 844 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. VETERAN’S CONTENTIONS The Veteran contends that she should service connected for her bilateral hearing loss and tinnitus disabilities. Specifically, she asserts that she developed hearing loss and tinnitus as a result of exposure to loud sounds while working as an animal care specialist in the military. See January 2011 VA Form 21-4138 Statement in Support of Claim. The Veteran also explained that although her Military Occupational Specialty (MOS) may have been considered to have low hazardous noise level exposure, her duties included being subjected to piercing noises from dogs, pigs, sheep, and monkeys. Id.; see also, November 2015 VA Form 21-4138 Statement in Support of Claim. The Veteran also stated that the protective gear did not filter out 100 percent of the noise. Id. Additionally, the Veteran contends that tinnitus is a symptom that demonstrates that something is wrong in the auditory system. See January 2015 Correspondence. The Veteran reported that she had tinnitus in the military and that her tinnitus was aggravated in the military. See February 2020 Correspondence. She also explained that she did not report her tinnitus symptoms on the 1994 medical history because she did not know the sounds in her ears had a medical name. Id. FINDINGS OF FACT 1. The Veteran did not have a preexisting hearing disability prior to enlistment for VA compensation purposes. See June 1987 Audiological Examination. 2. The Veteran’s current bilateral hearing loss is not related to her active duty service. Specifically, the Veteran did not have bilateral hearing loss disability for VA compensation purposes during any of her periods of active duty service. The April 2020 VA examiner acknowledged the Veteran’s reports of noise exposure in service but explained that a significant shift is 15 dB or more and after comparing the Veteran’s June 1987 entrance, audiological examination and March 1994 separation audiological examination, there was no evidence of a significant decrease in the Veteran’s hearing during service. A significant shift would be demonstrated if there was a decrease in hearing acuity secondary to noise exposure. 3. The December 2019 and April 2020 VA examiners found that the Veteran’s hearing loss was less likely than not related to service. The April 2020 examiner found that there was no objective evidence of noise injury in service based on the comparison of the Veteran’s entrance and separation audiological examinations. 4. The Veteran’s tinnitus began during her military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to June 1994. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran also had additional service in Army Reserve. This matter was previously remanded in October 2015, November 2018, and April 2020 for further development. 1. Entitlement to service connection for the Veteran's hearing loss disability is denied. In order to establish service connection for a claimed disorder, the following must be shown: (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, 1167 (Fed. Cir. 2004). With respect to the Veteran’s Army Reservice service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated in line of duty while performing active duty for training (ACDUTRA), or for disability resulting from an injury incurred or aggravated in line of duty while performing inactive duty for training (INACDUTRA). 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6(a) (emphasis added). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. See id. Under 38 U.S.C. § 1153, a veteran "bears the burden of showing that his preexisting condition worsened in service" and "[o]nce the veteran establishes worsening, the burden shifts to [VA] to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease." See Horn v. Shinseki, 25 Vet. App. 231 (2012). Stated differently, a "veteran must initially establish only that a preexisting condition worsened during the period of active duty, and at that point the veteran has the benefit of the presumption of aggravation." See Smith v. Shinseki, 24 Vet. App. 40 (2010). If VA cannot show by clear and unmistakable evidence that the worsening of the preexisting condition was due to the natural progress of the disease, then "the increase is presumed to have been caused by active duty service." See id. In McKinney v. McDonald, the United States Court of Appeals for Veterans Claims (Court) addressed when hearing loss noted on an enlistment examination constituted a preexisting disability for compensation purposes. 28 Vet. App. 15, 18-19 (2016). The Court held that when the level of hearing loss noted on an enlistment examination does not meet VA’s definition of a hearing disability under 38 C.F.R. § 3.385, a claimant is entitled to the presumption of soundness and, accordingly, the hearing loss noted on the enlistment examination may not be considered a preexisting disability. Id. at 28. Pursuant to 38 C.F.R. § 3.385, 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. At the outset, the Board notes that although the Veteran’s June 1987 enlistment examination showed impaired hearing in each ear, the impairment was not significant enough to qualify as impaired hearing under 38 C.F.R. § 3.385. Specifically, the November 2015, December 2019, and April 2020 VA examiners noted that the Veteran had nondisabling hearing loss at 2000 Hz and 3000 Hz in the right ear and at 3000 Hz in the left ear. See VA Examinations dated November 2015, December 2019, and April 2020. Accordingly, applying the holding of McKinney, the Veteran did not have a preexisting hearing disability prior to enlistment for VA compensation purposes. Next, the Board finds that the Veteran currently has a bilateral hearing loss disability for VA purposes. See December 2019 VA Examination. Moving next to in-service incurrence of bilateral hearing loss, the Board finds that the Veteran did not have bilateral hearing loss as a disability for VA purposes during any of her periods of active duty service. A review of the Veteran’s service treatment records (STRs) revealed that Veteran had mild hearing loss. The Board acknowledges that the Veteran’s February 1989 audiological examination indicted a shift in the Veteran’s left ear at the 500 and 6000 frequency levels. See February 1989 Audiological Examination. However, those shifts were no longer present at the April 1992, August 1992, and March 1994 audiological examinations. The April 2020 VA examiner explained that examiners look for significant threshold shifts that are present and consistent across tests to determine whether the Veteran’s nondisabling hearing loss was aggravated by service. The April 2020 examiner explained that a significant shift is 15 dB or more and after comparing the Veteran’s June 1987 entrance audiological examination and March 1994 separation audiological examination, there was no significant decrease in the Veteran’s hearing during service. Moving to nexus between the current the diagnosis and service, the Board finds that the Veteran’s current hearing loss is not related to service. In support of this determination, the Board relies upon the December 2019 and April 2020 VA examiners’ determinations that the Veteran’s hearing loss was less likely than not related to service. The April 2020 examiner acknowledged the Veteran’s reports of noise exposure in service but found that there was no objective evidence of noise injury in service based on the comparison of the Veteran’s entrance and separation audiological examinations. The April 2020 examiner explained that noise exposure does not always result in a noise injury, and in the Veteran’s case, no injury was evident, as the presence of a noise injury would be demonstrated by permanent significant threshold shifts on audiometric examination. The April 2020 examiner compared the Veteran’s in-service audiological examinations and found that the Veteran’s entrance and separation examination did not show a significant decrease in the Veteran’s hearing acuity during service. Turning to the Veteran’s service in the Reserves, the Board notes that the Veteran’s right ear hearing loss disability met 38 C.F.R. § 3.385’s criteria for a hearing disability during her Army Reserve service. See January 2011 Audiological Examination. The Veteran served in the Army Reserves from October 2006 to June 2014 as a Chaplain Assistant. She has not specifically asserted entitlement to service connection for hearing loss based on her service in the Reserves, but the Board will nevertheless consider such basis of entitlement. During the time period covering her service in the Reserves, the Veteran underwent audiological examination on three occasions: in September 2009, January 2011, and September 2014. The January 2011 audiological examination showed that between the September 2009 and January 2011 audiological examinations, there had been a shift of 15 dBs or more in both ears. However, only the Veteran’s right ear hearing loss met the VA’s criteria for a hearing disability. Significantly, this evidence is insufficient to establish that the decrease in hearing acuity was related to noise injury sustained during a period of Reserve service, as it demonstrates only a decrease (at some point in time) during a period lasting over a year, rather than during a delineated period of service on either ACDUTRA or INACDUTRA. When a claim of service connection is based on either a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred in the line of duty during the period of ACDUTRA or INACDUTRA. See 38 U.S.C. § 101(24); Smith v. Shinseki, 24 Vet. App. 40 (2010). The Board finds that the Veteran’s STRs do not support a finding that the Veteran sustained an injury during either ACDUTRA or INACDUTRA. Further, as noted above, the Veteran has not alleged that she sustained acoustic trauma during one of these periods. Thus, the Board finds that the shifts shown at the January 2011 audiological examination were representative of the natural progression of her hearing loss rather than representative of a noise injury sustained during either ACDUTRA or INACDUTRA service. The Board acknowledges the difficulties that the Veteran’s bilateral hearing loss causes in her interactions with family and students. See July 2011 VA 21-4138 Statement in Support of Claim. The Board also notes the Veteran’s assertion that the May 2007 CDC Report on Noise Exposure and Hearing Loss among Animal Care Worker establishes that she experienced loud noise exposure by way of her MOS. See September 2012 Notice of Disagreement. However, the Board finds that the April 2020 VA examiner thoroughly explained that noise exposure does not always result in noise injury. See April 2020 VA Examination. Additionally, the Veteran’s March 1994 separation audiogram demonstrated that the Veteran’s in-service noise exposure did not result in noise injury, as the April 2020 examiner explained, a noise injury would be supported by a permanent threshold shift on the audiogram. Accordingly, the Board finds that service connection for the Veteran’s bilateral hearing loss is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for the Veteran's tinnitus is granted. As a layperson, the Veteran is competent to identify tinnitus and testify as to observable symptoms, such as ringing in her ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the first element of service connection, a current disability, is satisfied. Turning next to in service incurrence, the Board acknowledges that the July 2012, November 2015, and December 2019 found that the Veteran’s tinnitus was not related to service. In support of this finding, the December 2019 examiner reasoned that were no complaints of tinnitus located in the service treatment records and for this reason, it was likely that the Veteran’s tinnitus is the result of the pre-existing, nondisabling hearing loss, as tinnitus is a known symptom of hearing loss. However, the examiners failed to acknowledge the Veteran’s contention that her tinnitus began in service. See February 2020 Correspondence. The Board finds that the Veteran credibly attested to experiencing tinnitus since service, but did not report it because she did not know the medical term for this condition. The Board also finds that a nexus exists between the Veteran’s current tinnitus and her military service. The Board finds that the Veteran is competent to identify the approximate date of onset and continuity of her tinnitus. As the Board has determined that the Veteran developed chronic tinnitus during her period of active service, service connection for tinnitus is warranted. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Foster, 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.