Citation Nr: 21029714 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-17 785 DATE: May 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Clear and unmistakable evidence reflects that that the Veteran's hearing loss existed prior to active service. 2. The evidence of record does not clearly and unmistakably establish that hearing was not aggravated during an active period of service. 3. The Veteran currently has bilateral hearing loss that is related to his active service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107 (2012); 38 C.F.R. § 3.303, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to June 1987, November 1990 to July 1991, and from January 2003 to July 2004, with additional service in the Army Reserves. This matters initially came before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office. In April 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2017, the Board remanded the matters to the agency of original jurisdiction (AOJ) for additional development. Following the Board's remand, the AOJ granted service connection for hypertension and gastroesophageal reflux disease, representing a full grant of these matters previously on appeal. The remaining issues have since returned to the Board for the purpose of appellate disposition. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). 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). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, that list includes an organic diseases of the nervous system, including hearing loss. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. VA regulations provide that active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.§ 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Furthermore, for purposes of 38 U.S.C. § 101(24), the term "injury" refers to the results of an external trauma rather than a degenerative process. See generally VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 86-90 (July 18, 1990); VAOPGCPREC 8-2001 (Feb. 26, 2001). Thus, the cumulative effects of acoustic trauma during ACDUTRA and INACDUTRA service may be deemed an injury for service connection purposes. Additional laws and regulations apply when there is evidence that a disability preexisted service. Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Determination of the existence of a preexisting condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion, see Miller v. West, 11 Vet. App. 345, 348 (1998), or a later medical opinion based upon statements made by the Veteran about the pre-service history of the condition. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). The burden is on VA 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, 1094-96 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that, despite attempts to obtain complete treatment records for the period of the Veteran's service from January 2003 to July 2004, Records Management Center, the Army Reserve Personnel Center, the Defense Personnel Records Information Retrieval System, no additional records were received other than a few records submitted by the Veteran. The United States Court of Appeals for Veterans Appeals (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he is entitled to service connection for hearing loss as due to in-service noise exposure. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability claims are governed by 38 C.F.R. § 3.385. This regulation provides hearing loss is a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater. 38 C.F.R. § 3.385. Alternatively, a hearing loss disability can be established by auditory thresholds for at least three of those frequencies at 26 decibels or greater or by speech recognition scores under the Maryland CNC Test at less than 94 percent. 38 C.F.R. § 3.385. The Veteran's service treatment records reflect that, on audiometric examination at enlistment in November 1985, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 25 35 LEFT 10 20 10 20 30 A deployment discharge examination dated in June 1991 reflects pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 30 35 LEFT 20 20 15 30 35 A reference audiogram with these findings notes that the Veteran was routinely exposed to hazardous noise. A January 1996 5-year physical for the Army Reserves reflects that, on audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 30 40 LEFT 20 20 10 30 40 A May 2001 physical for the Army Reserves indicates that, on audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 10 30 40 LEFT 25 20 15 35 40 Following active service, the Veteran presented for VA treatment in February 2015 with complaint of hearing loss and tinnitus. He reported that he had purchased and used hearing aids since 2012. He described hearing loss, worse in the left ear, and constant tinnitus. He was assessed with sensorineural hearing loss and prescribed hearing aids. During the Veteran's 2017 Board hearing, the Veteran described noise exposure while serving in the motor pool. He indicated that he was around large equipment, 915s, and deuce-and-a-halves. He also stated that he his hearing had progressively worsened. He noted that he was still in the Reserves and continued to worsen. On VA examination in December 2018, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 55 60 65 LEFT 35 45 50 55 65 Speech discrimination scores were 94 percent in the right ear and 96 percent in the left ear. The examiner diagnosed bilateral sensorineural hearing loss. Based on review of the record, the examiner opined that the Veteran's hearing loss existed prior to service and was not aggravated beyond normal progression in service. In so finding, the examiner observed that the Veteran's enlistment audiograms in 1985 showed hearing loss at 4000 and 6000 hertz. The Veteran's 1991, 1996, and 2001 examinations indicated hearing loss at the same levels. The examiner further noted that the Veteran's records showed military occupational specialties of Equipment Records and Parts Specialist and Automated Logistics Specialist which encompassed supply. Review of a Veterans Benefits Administration Fast Letter indicated a low probability for noise exposure for these duties. Based on the foregoing, the examiner opined that the Veteran's hearing loss was pre-existing and there were no changes in hearing profile while on active service. Therefore, it was opined that the Veteran's current hearing loss is less likely as not caused by or a result of in-service noise events. As to the first element of service connectioncurrent disabilitythe December 2018 VA examination reflects current hearing loss disability in accordance with 38 C.F.R. § 3.385. Therefore, the first element of service connection is met. As to the second element, in-service incurrence or aggravation of a disease or injury, the Board notes that there is question as to whether the Veteran's hearing loss preexisted any period of active service from February 1986 to June 1987, November 1990 to July 1991, and from January 2003 to July 2004. In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In the instant case, the Veteran's hearing loss was not noted on service entrance. As such, the presumption of soundness attaches. However, while hearing loss was not noted, audiometric findings showed abnormal hearing on entrance examination in 1985 prior to the Veteran's first period of service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Hearing loss disability was also clearly shown on examination in 1991, 1996, and 2001, prior to the Veteran's third period of active service, which began in 2003. The VA examiner also concluded that the Veteran's hearing loss clearly and unmistakably preexisted service. Accordingly, the Board concludes that hearing loss preexisted the Veteran's third and final period of active duty service. The remaining issue is whether there is clear and unmistakable evidence that the preexisting disability was not aggravated during service. The Secretary may show a lack of aggravation by establishing, with clear and unmistakable evidence, that there was no increase in severity or that any increase in severity was due to natural progress of the preexisting disorder. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (citing Wagner, 370 F.3d at 1096). The Board concludes that, although there is sufficient evidence to rebut the first prong of the presumption of soundness as the Veteran's hearing loss clearly pre-dated active service, there is not sufficient evidence to rebut the second prong of the presumption of soundness, namely that the Veteran's hearing loss was clearly and unmistakably not aggravated during a period of active service. To the contrary, the Veteran credibly testified that his hearing loss progressively worsened as a result of service. Although the 2018 VA examiner determined that the disability was not worsened as a result of noise exposure in active service, he did not take a complete history of in-service noise exposure or consider the Veteran's testimony regarding noise exposure, to include his service in the motor pool and around heavy equipment. Moreover, the Veteran's DD-214 from his third period of active service from 2003-04 also showed a specialty of masonry and carpentry, which was not considered. In addition, complete service treatment records for the Veteran's last period of active service from 2003-04 are unavailable. Accordingly, this finding of a lack of aggravation by the VA examiner does not rise to the level of clear and unmistakable evidence required to rebut the aggravation prong of the presumption of soundness. As noted, when no preexisting condition is noted upon entry into service, if the government fails to rebut the presumption of soundness under section 1111 by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service, the Veteran's claim is one of service connection by direct in-service incurrence. Wagner, 370 F.3d at 1096. The Veteran is presumed sound, even when as here there was evidence of a preexisting condition, if the VA fails to show by clear and unmistakable evidence that a preexisting condition was not aggravated by service. Id. This essentially has the effect of converting an aggravation claim into one for service-connected disability where the government could not show a lack of aggravation of a preexisting condition by clear and unmistakable evidence. Id. This means that no deduction for the degree of disability at the time of entrance will be made if a rating is awarded, even though the case is technically being awarded based on evidence of aggravation of a preexisting disorder. Id. On this point, the Court reemphasized that once the presumption of soundness is applied, if the VA is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. At that point, however, a veteran still must establish that he or she has a current disability that is related to the in-service injury or disease. "It does not necessarily follow... that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The claimant must still demonstrate a current disability and a nexus between his or her current disability and the injury or disease in service." Horn, 25 Vet. App. at 236-37. See also Holton v. Shinseki, 557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007). As to nexus to service, the Board notes that the complete records from the Veteran's third period of active service are not available. However, the Veteran has credibly and consistently reported hearing loss since service that has progressively worsened. In addition, it is clear from VA treatment records and examinations that the disorder is the same. Therefore, the record supports that the current bilateral hearing loss is a progression of the Veteran's previously noted hearing loss. Accordingly, because the Veteran has a current diagnosis of bilateral hearing loss, given that the in-service incurrence element is established by virtue of the application of the presumption of soundness, in light of the lay evidence establishing that the Veteran's current hearing loss is the continuation of the hearing loss that was present during active service and the Board's heightened duties with respect to the missing service treatment records, the Board find that's the evidence is at least in equipoise as to whether the Veteran's current hearing loss is related to service. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 49, 55 (1990). REASONS FOR REMAND Although the Board regrets the delay, additional development on the claim for service connection for tinnitus is warranted. In response to the Board's 2017 remand, AOJ requested records from the Records Management Center, the Army Reserve Personnel Center, the Defense Personnel Records Information Retrieval System to attempt to obtain records from January 2003 to July 2004 and verify any additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The records received include points statements indicating that the Veteran accumulated inactive duty point and active duty points for his Reserves service from 1985 to 2017, but there is no further indication as to whether this was as a result of ACUTRA or INACDUTRA. Given that the Veteran indicates that his tinnitus onset while in the Reserves, additional efforts to verify his service should be undertaken. VA should exhaust all avenues to verify the Veteran's periods of ACDUTRA and INACDUTRA, to include contacting the Defense Finance and Accounting Service (DFAS) and any other appropriate source to request the Veteran's pay stubs. The Board also instructed in the remand that the Veteran be afforded an examination to determine the nature and etiology of the claimed tinnitus; however, the Board believes that the opinion obtained is inadequate. On VA examination December 2018, the examiner opined that the Veteran's tinnitus was "not a symptom associated with hearing loss" as the Veteran's military occupational specialty was low probability for noise. This rationale does not address whether tinnitus is related to the now service-connected hearing loss. In the May 2019 addendum opinion, the examiner opined that the Veteran's tinnitus is less likely than not a symptom associated with the Veteran's active miliary or ACDUTRA or Reserve service, as his military occupational specialty was low for noise exposure. Again, the examiner provided little rationale for the opinions expressed, nor did the examiner consider the Veteran's statements as to in-service noise exposure. Accordingly, the Board finds that addendum opinion is warranted. The matters are REMANDED for the following action: 1. Verify all active duty for training and inactive duty training dates for service in the Reserves from 1985-2017. A request should be made to the DFAS and any other appropriate source to request the Veteran's pay stubs. Document all requests for information as well as all responses in the claims file. Any periods of ACDUTRA and INACDUTRA should be summarized in a memorandum for the file, with particular attention to the points summary contained in the May 2018 Military Personnel Record. 2. The AOJ should also refer the electronic claims file to an appropriate medical professional for addendum opinion pertaining to the claimed tinnitus. The entire claims file must be made available to the designated examiner. If another examination is deemed necessary, one should be provided. The examiner should indicate whether the Veteran's tinnitus at least at likely has not 1) had its onset in or is otherwise related to a period of active service, to include his cumulative noise exposure during active service, as well as periods of ACDUTRA or INACDUTRA with the Army Reserves, or 2) was caused by or aggravated by (increased in severity beyond the natural progress of the condition) by the service-connected bilateral hearing loss. (Continued on the next page) The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be taken into account, along with the other evidence of record, in formulating the requested opinions. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached with full discussion of the facts and medical principles involved. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.