Citation Nr: 21025701 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-37 768 DATE: April 28, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran had exposure to loud noise (acoustic trauma) in service. 2. The evidence is at least in equipoise as to whether the Veteran’s preexisting left ear hearing loss was aggravated beyond the natural progression of the disorder during active service. 3. Right ear hearing loss and tinnitus are etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for establishing entitlement to service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from March 1971 to March 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s electronic claims file. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be granted for aggravation of a preexisting injury suffered or disease contracted in the line of duty. VA law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue preexisted entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran seeks entitlement to service connection for left ear hearing loss, right ear hearing loss, and tinnitus. The left ear hearing loss claim will be discussed separate from the right ear hearing loss and tinnitus claims, which will be discussed together. 1. Entitlement to service connection for left ear hearing loss is granted. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Initially, the Board notes that, on VA examination in May 2015, the Veteran was diagnosed with left ear hearing loss. Thus, the first element of service connection has been met. The Board finds that the Veteran’s left ear hearing loss disability preexisted service and was “noted” upon service entrance. The Veteran’s September 1970 enlistment examination shows that the Veteran had left ear hearing loss, as audiological testing revealed 45 dB at 4000 Hz. Thus, the audiometric findings at service entrance are demonstrative of a left ear hearing loss disability prior to service that meets the requirement of hearing loss disability at 38 C.F.R. § 3.385. Therefore, a preexisting left ear hearing loss disability was “noted” upon entry into active service. 38 C.F.R. § 3.304(b); McKinney v. McDonald, 28 Vet. App. 15 (2016) (the term “defect” should be narrowly interpreted so that it does not encompass a level of hearing impairment that is not considered a “disability” under 38 C.F.R. § 3.385). As the left ear hearing loss disability was noted at service entrance, the presumption of soundness at entry into active service does not attach. See 38 U.S.C. § 1111. Because the Veteran’s preexisting left ear hearing loss disability was noted at the time of entry into service, service connection for left ear hearing loss may be granted only if it is shown that the left ear hearing loss disability worsened in severity beyond its natural progression during service (i.e., was aggravated by service). 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Next, the evidence supports a finding of in-service acoustic trauma. The Veteran’s service personnel records reflect a military occupational specialty ( MOS ) of light weapons infantryman. Throughout the period on appeal, the Veteran has consistently stated that he was exposed to loud noises during his service. He has repeatedly indicated an incident where he was in a cement foxhole, and as he was shooting a 50-caliber machine gun while in the foxhole, his earplugs came out, causing hearing issues since then. See March 2015 claim, May 2015 VA examination report, September 2015 notice of disagreement (NOD), and November 2020 Hearing Transcript at pg. 3. The Board finds his statements credible, as he has consistently asserted that he was indeed exposed to acoustic trauma during active service consistent with the places, types, and circumstances of service. Furthermore, the Veteran is competent to report lay-observable in-service noise exposure; that he experienced hearing problems during and following service; and that it has continued since then. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2). As the Veteran’s statements regarding the nature of his service and his exposure to noise have been consistent and unvarying throughout the record, the Board finds no reason to doubt the veracity of the Veteran’s statements. Thus, the Board finds that the Veteran has competently and credibly reported that he was exposed to noise while performing his duties in service. Thus, the Board accepts these statements as competent evidence establishing in-service noise exposure, and, as such, the second element of in-service incurrence has been met. In his September 2015 NOD, the Veteran indicated that he was not aware that he had hearing loss in his left ear upon entry into service, and that he first noticed his hearing loss during service. During the November 2020 Board hearing, the Veteran’s spouse testified that the Veteran has had hearing problems for about 35 to 40 years. On VA examination in May 2015, the examiner opined that the left ear hearing loss was less likely than not related to in-service noise exposure, reasoning that the service separation examination revealed that hearing acuity in the left ear essentially remained unchanged since induction. As a result, the examiner also opined that it is less likely as not that the Veteran’s left ear hearing loss was aggravated beyond normal progression as a result of military service. After reviewing the evidence, the Board finds that service connection for left ear hearing loss is warranted. The Board notes that the record does not include a positive medical opinion concluding that the preexisting left ear hearing loss disability was aggravated by active service. However, based on the above evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s left ear hearing loss was aggravated beyond the normal progression by active service. There is no clear and unmistakable evidence to rebut the presumption that the left ear hearing loss was aggravated by service. As previously indicated, the Veteran indicated that he was not aware that he had left ear hearing loss at service induction. Furthermore, he has repeatedly stated that he has had hearing problems since service due to his duties in service as a result of his MOS as a light weapons infantryman. Also, the Board notes the May 2015 VA examiner’s opinion that it is less likely as not that the Veteran’s left ear hearing loss was aggravated beyond normal progression as a result of military service was based on the finding that the hearing acuity in the left ear “essentially remained unchanged since induction.” However, the examiner did not explain the shift in hearing acuity that the Veteran seemingly experienced during service. Therefore, the May 2015 VA opinion does not establish clear and unmistakable evidence (i.e. that it is undebatable) that the Veteran’s left ear hearing loss was not aggravated by service or that any increase was due to natural progression of the condition. Wagner, 370 F.3d at 1089. For these reasons, the Board finds that the preexisting left ear hearing loss was aggravated by (worsened during) service. Thus, based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s preexisting left ear hearing loss was aggravated by active service beyond the natural progression of the disorder. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for left ear hearing loss based on aggravation is warranted. 2. Entitlement to service connection for right ear hearing loss is granted. See Argument Below 3. Entitlement to service connection for tinnitus is granted. The Veteran also seeks entitlement to service connection for right ear hearing loss and tinnitus. He asserts that his hearing loss and tinnitus were caused by in-service exposure to noises. As the analysis is similar, the issues will be discussed together. Hearing loss and tinnitus are recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). First, on VA examination in May 2015, the Veteran was diagnosed with right ear hearing loss, and he reported recurrent tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a layperson is capable of observing tinnitus). Thus, the first element of service connection has been met. Next, as established above in the discussion for the left ear hearing loss claim, the evidence supports a finding of in-service acoustic trauma. As in-service noise exposure has already been established in this decision, the second element of in-service incurrence has been met. Next, as to continuity, the Veteran has indicated that he has experienced right ear hearing loss and tinnitus since service. While there is an absence of complaints of or treatment for hearing loss or tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of right ear hearing loss and tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Finally, as to nexus, the May 2015 VA examiner was unable to provide a nexus between the Veteran’s right ear hearing loss and tinnitus to service because the Veteran’s hearing was normal at separation from service. The Board acknowledges a June 2015 private opinion from Dr. D.H., in which he opines that the Veteran’s military noise exposure could have contributed to or even caused the Veteran’s significant hearing loss. The Board finds Dr. D.H.’s opinion to be inadequate, as it is speculative, and Dr. D.H. did not review the Veteran’s entire claims file. While the record does not include an adequate medical opinion that indicates a nexus between the Veteran’s right ear hearing loss and tinnitus with service, the Board does not need to reach the weight assignable to any medical opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” diseases of hearing loss and tinnitus (38 C.F.R. § 3.309 (a)) based on a finding of “continuous” symptoms of hearing loss and tinnitus since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in service and continuous symptoms of right ear hearing loss and tinnitus since service; therefore, right ear hearing loss and tinnitus are presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of right ear hearing loss and tinnitus since service separation, all other service connection theories are rendered moot. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, 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.