Citation Nr: 21030706 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-27 018A DATE: May 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to a rating greater than 30 percent for bronchial asthma is remanded. FINDINGS OF FACT 1. It is as likely as not the Veteran has experienced tinnitus since his service. 2. However, the preponderance of the evidence contrarily is against finding that his bilateral hearing loss began during his service, that he had sensorineural hearing loss within a year of separating from service, or that his hearing loss is otherwise related or attributable to his service including to acoustic trauma. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. But the criteria conversely are not met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1974 to May 1976. This appeal to the Board of Veterans' Appeals (Board) is from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2019 decision, the Board denied the Veteran's claims for service connection for tinnitus and bilateral hearing loss and for a rating higher than 30 percent for his service-connected bronchial asthma. He appealed the Board's decision denying these claims to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In December 2020, the CAVC granted a Joint Motion for Remand (JMR), vacating the Board's decision denying these claims and remanding them back to the Board for further development and readjudication pursuant to agreement in the JMR. 1. Entitlement to service connection for tinnitus is granted. The Veteran contends he has experienced tinnitus since his service, and he attributes it to the acoustic trauma he says he sustained during his service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus') between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain "chronic" diseases including tinnitus and sensorineural hearing loss since types of organic disease of the nervous system, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service, or if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year of the Veteran separating from service, or if they were noted in service (or within the applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). In August 2014, the Veteran submitted the report of a private medical examination showing a then current diagnosis of tinnitus. The examiner additionally indicated the Veteran had reported experiencing tinnitus since his time in service. A subsequent VA audiological examination in October 2015, however, conversely noted the Veteran was not then currently experiencing tinnitus. Concerning that more recent VA medical evaluation, however, the definition of current disability for VA compensation purposes is broad and includes intermittent manifestations. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McLain on a recent diagnosis even predating the filing of a claim). Consequently, because the Veteran has competently and credibly reported experiencing tinnitus since his service and at least has established he had this disease at some point relevant to this appeal, the Board is resolving all reasonable doubt in his favor and finding that he is entitled to service connection for tinnitus since as likely as not attributable to his military service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss is denied. The Veteran also contends his bilateral hearing loss is related to his time in service. The Veteran's DD Form 214 shows his Military Occupational Specialty (MOS) was subsistence supply specialist, which is not considered to necessarily have a high degree of exposure to hazardous levels of noise. In addition, he has not offered any testimony relating to noise exposure outside of his MOS. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a ratable disability when the auditory threshold in any of the frequencies at 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 scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even if disabling hearing loss according to this VA regulation is not demonstrated during service, including at separation or even during the one-year presumptive period following service for sensorineural hearing loss, especially, a Veteran may, nevertheless, establish his entitlement to service connection for a current hearing loss disability by submitting evidence showing his hearing loss now meets the requirements of this VA regulation and having probative evidence relating his current hearing loss to his service as opposed to other ("intercurrent") causes. See Hensley v. Brown, 5 Vet. App. 155 (1993). Here, though, while the Veteran has a current diagnosis of hearing loss, including sufficient to meet the threshold minimum requirements of § 3.385 to be considered a ratable disability for VA compensation purposes, the evidence weighs against finding that his bilateral hearing loss began during his service, that he had sensorineural hearing loss within one year of his separation from service, or that his bilateral hearing loss is otherwise related or attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). There was no suggestion of hearing loss in either ear during the Veteran's service from August 1974 to May 1976 or of a significant threshold shift in any relevant frequency. He did not complain of hearing loss while in service and there was no diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the service treatment records (STRs) as evidence contradictory to a Veteran's assertions if the STRs appear to be complete at least in relevant part, and the injury, disease, or symptoms involved ordinarily would have been recorded had they occurred). The same is true during the one-year presumptive period following conclusion of the Veteran's service; this presumptive period allowing for initial manifestation of sensorineural hearing loss to at least 10-percent disabling expired in May 1977. Indeed, the Veteran was not first diagnosed with hearing loss until in October 2014, so not for some 38 years after his service and some 37 years after expiration of the presumptive period. There was no suggestion during those many intervening years of difficulty with his hearing owing to anything that had occurred during his time in the military. Continuity of symptoms was not shown. Taken together, this long a lapse of time between his separation from service and initial indication of this now claimed disability tends to refute the notion that it originated during his service and has persisted ever since. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy period following his service during which there was no clinical documentation of the claimed disorder). Ultimately, the Board must consider all evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). Therefore, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The October 2015 examiner pointed out that, during the Veteran's service, there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 4000 Hertz for either ear. This examiner also concluded the Veteran's hearing loss was not at least as likely as not caused by or a result of an event during his military service. This examiner explained that the record does not show significant puretone threshold shifts during the Veteran's service. Instead, this examiner considered it significant the Veteran had not been first diagnosed with hearing loss until many years after his service and concluded it is "highly probable" his hearing loss instead is the result of the normal aging process rather than a result of his service. While the Veteran is competent to report having experienced symptoms of hearing loss since his service (as he did during his August 2014 private medical examination), he is not competent to ascribe his symptoms to a particular diagnosis and, in turn, relate this diagnosis to events that took place during his service. These critical determinations are beyond the realm of his lay competence. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the October 2015 VA examiner's opinion than to the Veteran's contrary lay reports and pleadings. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Hearing loss is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that physical examinations that include objective audiometric testing are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim, so the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Consequently, the appeal of this claim must be denied. REASONS FOR REMAND Entitlement to a rating greater than 30 percent for bronchial asthma is remanded. One pathway to a higher rating under 38 C.F.R. § 4.97, Diagnostic Code 6602, is to show daily use of immuno-suppressive drugs. The records show daily use of Albuterol, Budesonide/Formoterol, Formoterol/Mometasone, Mometasone Furoate, Fluticasone, Ipratropium Bromide, Loratadine, and Tiotropium. Because the Board may not, in making its decisions, assert its own medical opinion, medical comment is needed to clarify whether the Veteran has been prescribed immuno-suppressive medications that would entitle him to a higher rating. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, this claim is REMANDED for the following action: Forward the claims file to an appropriate VA examiner for clarifying opinion concerning whether immuno-suppressive drugs have been prescribed for treatment of the Veteran's bronchial asthma. His records show daily use of Albuterol, Budesonide/Formoterol, Formoterol/Mometasone, Mometasone Furoate, Fluticasone, Ipratropium Bromide, Loratadine, and Tiotropium, so the examiner is specifically asked to specify whether any of these medications or any other that has been prescribed for treatment of the Veteran's bronchial asthma is considered an immuno-suppressive drug. To assist in making this important determination, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.