Citation Nr: 21021511 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-29 798 DATE: April 13, 2021 ORDER Entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to service connection for a recurrent tinnitus disability is granted. REMANDED Entitlement to service connection for a right ear hearing loss disability is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, he experienced a left ear hearing loss disability since separation from active military service due to hazardous noise exposure in service. 2. Affording the Veteran the benefit of the doubt, his recurrent tinnitus disability began in service and continued after service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a recurrent tinnitus disability have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1966 to June 1980. He also served in the Army National Guard. The Veteran had combat service in Vietnam and is in receipt of multiple service awards to include Air Medals, a Republic of Vietnam Meritorious Unit Commendation with one star, a Navy Commendation Medal, a Vietnam Service Medal with three stars, an Armed Forces Expeditionary Medal with one star, a Meritorious Unit Commendation, and a Heroism Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. The Board notes that additional VA treatment records were associated with the Veteran’s claims file following the last issuance of his statement of the case in March 2017. As the Board is granting service connection for the left ear hearing loss and recurrent tinnitus disability and remanding the right ear hearing loss disability, it would not be prejudicial to the Veteran if the Board does not obtain a waiver of review by the agency of original jurisdiction (AOJ) for these additional VA treatment records. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases, such as bilateral hearing loss and tinnitus, are subject to presumptive service connection if the chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). VA will also grant service connection on a secondary basis. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Left ear hearing loss The Veteran contends that his bilateral hearing loss and recurrent tinnitus is related to his 14 years of exposure to continuous loud noise with no hearing protection based on his duties as a helicopter pilot. Moreover, he asserts that he has had continuous problems with his hearing since service. As an initial matter, hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Upon review of the evidence, the Board finds that service connection for a left ear hearing loss disability is warranted. As indicated in a September 2014 VA examination, the Veteran’s left ear hearing threshold shows auditory thresholds of 26 decibel (dB) or greater at frequency 2000, 3000, and 4000 Hertz (Hz). As such, he has a left hearing loss disability for VA purposes. The evidence further supports a finding of an in-service exposure to hazardous noise. The Veteran’s military personnel record shows that he served as a rotary wing pilot flying helicopters for 14 years and participated in multiple flight operations to include flying CH-53 helicopters during military evacuation efforts in Vietnam. Based on these findings, the Board finds that it is likely that he had a high probability of hazardous noise exposure based on his military occupational specialty (MOS) as a pilot. The Veteran’s service treatment records (STRs) further indicates that he was treated for ear infections throughout 1967, 1972, 1975, and 1978. As such, the Board concludes that there was an in-service injury to the ears. The Board has considered the Veteran’s assertion that he experienced left ear hearing loss in service due to his duties as a rotary wing pilot flying helicopters throughout service. The Board has further considered his assertion that his left ear hearing loss began in service and continued since separation from service. While he did not complain of any hearing loss during service, his STRs did reflect multiple treatment for ear infections in service. More importantly, his STRs from March 1969 through June 1980 did reflect evidence mild hearing threshold shifts. Upon separation from service, the Veteran’s Army National Guard (ARNG) STRs continues to show hearing threshold shifts from as early as 1985 to 2001. Notably, his ARNG STRs noted that audiologic findings in February 1990, July 1995, January 1998, and February 2000 indicated high frequency hearing loss. Based on the foregoing evidence, the Board finds the Veteran’s lay statements to be competent and credible statements regarding the continuous nature of his hearing loss, specifically noting that his hearing loss began in service and has progressed over time. There is no evidence to suggest that the Veteran is not being truthful. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted for the Veteran’s left ear hearing loss disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Recurrent tinnitus disability The Veteran further seeks service connection for his recurrent tinnitus disability. The Veteran also asserts that his tinnitus is related to his hazardous noise exposure as a rotary wing pilot, that it was incurred in service, and has continued since separation from service. In the alternative, the Veteran also asserts that his recurrent tinnitus disability is secondary to his bilateral hearing loss disability. The evidence reflect that the Veteran has a current diagnosis of recurrent tinnitus as shown in a September 2014 VA examination. Moreover, as previously discussed, the Veteran has been found to be exposed to hazardous noise on the basis of his MOS. The Veteran’s STRs also reflects multiple treatments for his ears to include ear infections, an obstructed tympanic membrane, and infected hair follicle. The Veteran also endorsed ringing in his ears on a November 1978 Officer Physical Examination Questionnaire. As such, the Board concludes that an in-service injury or occurrence has been satisfied. The Veteran has reported that he has continued to experience tinnitus after his separation from service. Although the medical evidence does not demonstrate continuous treatment for tinnitus, tinnitus is a condition capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). In this regard, the Board finds that his lay statements regarding the onset and continuous nature of his tinnitus are competent and credible. Thus, the Board affords the most probative weight to Veteran’s lay statements regarding the etiology of his recurrent tinnitus disability. Accordingly, as the evidence shows an in-service occurrence of tinnitus and continuous symptoms of tinnitus since separation from service, as such, in resolving all doubts in favor of the Veteran, the Board finds that service connection is warranted for a recurrent tinnitus disability. REASONS FOR REMAND 1. Entitlement to service connection for a right ear hearing loss disability is remanded. The Board finds that a remand is warranted to develop the Veteran’s right ear hearing loss disability before it can adjudicate the merits of the claim. During the September 2014 VA examination, the audiologic findings indicated that the Veteran did not have hearing loss in the right ear for VA purposes. However, in a November 2019 VA audiology note, an audiologist noted that he had a diagnosis of bilateral sensorineural hearing loss and indicated that a comprehensive audiometry examination was performed. However, aside from a brief summary of the findings, there are no objective audiologic findings showing his Puretone thresholds in the frequencies of 500 Hertz to 4000 Hertz for the Board’s review. These objective audiologic findings are necessary to determine whether the Veteran has a right ear hearing loss disability for VA purposes. As such, this matter must be remanded to obtain any outstanding VA medical records related to his hearing loss disability. The matter is REMANDED for the following action: 1. Obtain any outstanding VA or private treatment record related to the Veteran’s hearing loss disability and associate them with the claims file – in particular, to include any audiologic test results noted in the November 2019 VA record. 2. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.