Citation Nr: 21021351 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-38 533 DATE: April 12, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss cannot be satisfactorily disassociated from his in-service noise exposure or his service-connected tinnitus. 2. The evidence is at least in relative equipoise as to whether the Veteran’s right ear hearing loss clearly and unmistakably pre-existed service and was clearly and unmistakably not aggravated by service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1966 to June 1968. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the November 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for bilateral hearing loss. The Veteran’s Notice of Disagreement (NOD) was received in December 2016. The Statement of the Case (SOC) was issued in May 2017, and the Veteran’s VA Form 9, substantive appeal to the Board was received in July 2017. Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for bilateral sensorineural hearing loss which he attributes to acoustic trauma during service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); sensorineural hearing loss is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Likewise, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). A Veteran’s lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Decreased hearing acuity is the type of symptom or disability capable of observation by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). A layperson is competent to report on the onset and continuity of his current symptomatology. See 38 C.F.R. § 3.159 (a); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran’s service treatment records (STRs) contain a February 1966 pre-induction medical examination. On the authorized audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 0 0 0 40 00 LEFT 0 0 0 5 0 10 An accompanying report of medical history indicates that the Veteran reported having hearing loss. There are no complaints or treatments for hearing loss throughout the Veteran’s STRs. The Veteran’s May 1968 discharge examination contains an audiometry exam. The results are as follows: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 0 0 (blank) 45 (blank) LEFT 0 0 0 (blank) 25 (blank) The Veteran’s military personnel records list his military occupational specialty (MOS) as medical specialist. It is also noted that the Veteran served in the Republic of Vietnam. In October 2016, the Veteran underwent a VA examination for his claim. On the authorized audiological evaluation, pure tone thresholds in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 15 20 65 60 60 60 70 LEFT 15 50 70 65 65 55 55 Speech discrimination scores of 96 percent in the right ear and 94 percent in the left ear were noted. The VA examiner confirmed the diagnosis of bilateral hearing loss. The VA examiner indicated that the Veteran’s right ear hearing loss preexisted service and concluded that it was not aggravated beyond normal progression by military service. For rationale, the VA examiner indicated that the Veteran’s entrance examination indicated hearing loss at 4000 Hz and that there was only a 5 dB shift at separation. The VA examiner indicated that this measurement is within the rest/retest variability and therefore the Veteran’s pre-existing right ear hearing loss was not aggravated beyond normal progression in military service. For the left ear, the VA examiner indicated that hearing loss did not preexist service but that it was less likely than not incurred in or caused by service. For rationale, the VA examiner indicated that the Veteran’s hearing thresholds at the time of entrance and separation were within normal limits. The VA examiner cited an American College of Occupational Noise and Hearing Conservation Committee finding that a noise induced hearing loss will not progress once it is stopped. Finally, the VA examiner noted that the Veteran had tinnitus which had its onset once in 1968 once the Veteran came back from Vietnam. The VA examiner did not provide an etiology opinion between tinnitus and hearing loss, but did conclude that the Veteran’s tinnitus was at least as likely as not a result of military noise exposure. A December 2016 statement from the Veteran’s wife indicates that she joined the Veteran in Kentucky, where he served his last 6 months after returning from Vietnam. The Veteran’s wife indicated that after returning from Vietnam, his hearing loss continually worsened. With respect to left ear hearing loss, the evidence is at least in relative equipoise as to whether the Veteran’s left ear hearing loss is related to his in-service noise exposure. In this regard, there is a current diagnosis of left ear hearing loss. In-service noise exposure was conceded when the Veteran’s was awarded service connection for tinnitus. Moreover, in-service noise exposure is consistent with the circumstances of the Veteran’s service as a medic specialist with service in the Republic of Vietnam. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The remaining question is whether the Veteran’s left ear hearing loss is related to his in-service noise exposure. The October 2016 VA examiner opined that the Veteran’s left ear hearing loss is not related to in-service noise exposure due to lack of in-service hearing shift, citing a medical literature indicating that noise induced hearing loss will not progress once it is stopped. This opinion does not provide an adequate rationale. The VA examiner did not address when the Veteran’s left ear hearing loss had its onset. However, lack of in-service diagnosis or treatment does not in and of itself equate to a lack of disability as the Veteran’s disability may had its onset after service and may still be related to service. While medical treatment, or lack thereof may be relevant, lack of documented treatment in service cannot serve as the basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, the October 2016 VA medical opinion with respect to a nexus between the Veteran’s left ear hearing loss and service is not afforded probative value. In this case, the Veteran has been awarded service connection for tinnitus, which he contended began after he returned from his service in the Republic of Vietnam. The Veteran’s tinnitus is service-connected based on the same in-service noise exposure as his left ear earing loss. It is inconsistent to determine that the same noise exposure was sufficient to cause tinnitus but not sufficient to cause hearing loss. This is particularly persuasive given the fact that tinnitus is a known symptom of hearing loss and the October 2016 VA examiner could not opine that tinnitus is less likely than not a symptom associated with the Veteran’s hearing loss. Therefore, the evidence is at least in relative equipoise as to whether the Veteran’s left ear hearing loss is related to service and his service-connected tinnitus. In essence, the medical and lay evidence of record indicates that the Veteran’s left ear hearing loss cannot be satisfactorily disassociated from his in-service noise exposure or his service-connected tinnitus. With all reasonable doubt resolved in the Veteran’s favor, service connection for left ear hearing loss is warranted. Turning to the Veteran’s right ear hearing loss, the evidence is at least in relative equipoise as to whether the Veteran’s right ear hearing loss preexisted service and whether it was aggravated beyond its natural progression by service. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). If the presumption of soundness applies, the burden then shifts to “the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Accordingly, once the presumption of soundness applies, the burden of proof remains with the government on both the preexistence and the aggravation prong; it never shifts back to the claimant. This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. See id. Clear and unmistakable evidence means evidence that “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). Whether evidence of preexistence meets the clear and unmistakable standard is ultimately a legal question to be answered by the Board. 38 C.F.R. § 3.100 (a) (delegating the Secretary’s authority “to make findings and decisions...as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”). A preexisting injury or disease will be considered to have been aggravated by active 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; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 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. 38 C.F.R. § 3.306. The Veteran’s February 1966 entrance examination contains Veteran’s reports that he has hearing loss and an audiometry examination showing right ear hearing loss. Thus, while the report does not specifically state that the Veteran has a right ear hearing disability, it is clear and unmistakable that the Veteran’s right ear hearing loss pre-existed service. The remaining question is whether the Veteran’s right ear hearing loss was clearly and unmistakably aggravated beyond its natural progression by active service. In this regard, the evidence is at least in relative equipoise. The October 2016 VA examiner found no aggravation, concluding that there was only a 5 dB threshold at separation and indicating that this measurement is within test/retest reliability. The VA examiner further indicated that all other hearing thresholds tested were within normal limits. However, the Veteran’s discharge audiometry examination is incomplete, and it is impossible to compare all thresholds from the Veteran’s entrance and discharge examinations. Indeed, the Veteran’s separation examination does not contain any readings at 3000 or 6000 Hz. Thus, it is unclear whether there was an additional threshold shift for those readings, making the conclusion that there was no significant shift in service based purely on speculation. In other words, while it is true that the remaining tested frequencies did not show a significant shift during the Veteran’s discharge, there were two frequencies that were not tested, and absence of testing does not equate to a finding of no threshold shift occurred in those frequencies. Accordingly, the October 2016 VA medical opinion regarding aggravation of the Veteran’s right ear hearing loss is not afforded probative value. On the other hand, there is evidence suggesting that the Veteran’s right ear hearing loss worsened in service. There is an indication of a 5 dB threshold shift at 4000 Hz between service and separation. The Veteran also developed tinnitus. The Veteran reported experiencing tinnitus during service, shortly after returning from Vietnam. As previously noted, tinnitus is a known symptom of hearing loss. In this case, medical evidence of record did not distinguish tinnitus as a separate disability that is not a symptom of hearing loss. Given the Veteran’s discharge examination showing worsening of his right ear hearing loss, coupled with competent and credible reports of onset of tinnitus, the evidence is at least in relative equipoise as to whether the Veteran’s pre-existing right ear hearing loss was clearly and unmistakably aggravated beyond its natural progression by active service. With all reasonable doubt resolved in the Veteran’s favor, service connection for right ear hearing loss is warranted. In sum, the evidence is at least in relative equipoise as to whether the Veteran’s left ear hearing loss is causally related to his service and his service-connected tinnitus. The medical and lay evidence of record indicates that the Veteran’s hearing loss disability cannot be satisfactorily disassociated from his in-service noise exposure or his service-connected tinnitus. Moreover, the Veteran’s right ear hearing loss clearly and unmistakably pre-existed service. The evidence is at least in relative equipoise as to whether the Veteran’s right ear hearing loss was clearly and unmistakably not aggravated beyond its natural progression by active service. With all reasonable doubt resolved in the Veteran’s favor, service connection is warranted for bilateral hearing loss. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.