Citation Nr: 21030800 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-25 234 DATE: May 19, 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. FINDING OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's left ear hearing loss disability is related to his active service. 2. The evidence is at least in equipoise as to whether the Veteran's right ear hearing loss disability is related to his active service. 3. The evidence is at least in equipoise as to whether the Veteran's tinnitus disability is related to his active service. CONCLUSION OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a tinnitus disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1976, with subsequent service in the reserves through July 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. On December 14, 2020, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issues of service connection for bilateral hearing loss and tinnitus back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated January 4, 2021, notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative did not respond and with the passage of the prescribed 90-day period, the Board will now consider the appeal. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMR focused on the reasons and bases of the Board's February 2020 denial of the hearing loss and tinnitus claims, noting the Board did not address a favorable private examination and opinion of August 2019, and that it did not consider the Veteran's lay statements without addressing credibility. Here, because this decision grants service connection for all of the issues on appeal that were addressed by the CAVC's JMR, the Board considers the Court's remand to be satisfied in full. The reasons and bases for the Board's grant of these issues will be discussed in further detail below. The Board also notes again the mention of the private audiologist examination and opinion for service connection of August 2019. Under 38 C.F.R. § 20.1304(c), any pertinent evidence that is submitted to the Board, including evidence obtained and added to the file by the RO, must be referred to the AOJ for initial review unless this right is waived by the appellant or representative in writing or on the record during a hearing. Here, that August 19, 2019 private examination and opinion was submitted to the claims file after the original August 2018 rating decision and August 15, 2019 Statement of the Case. The Veteran's representative submitted a cover letter with that private examination and opinion on the same date, but there is no record of a waiver from either the Veteran himself or his representative regarding possible AOJ consideration of the new evidence. Under the Board's procedures at the time of its initial adjudication in February 2020, it should have sought clarification from the Veteran and his representative as to whether they waived initial AOJ consideration for that additional pertinent evidence. Here, because the Veteran's original claims for service connection for bilateral hearing loss and tinnitus have been granted in full in this Board decision, the Board considers that defect regarding the newly submitted August 2019 examination evidence to be cured, and there remains no harm to the Veteran. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection for Bilateral Hearing Loss and Tinnitus Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran 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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The United States Court of Appeals for Veterans Claims held that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." In evaluating claims of service connection for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). To make this determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for hearing loss can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Bilateral Hearing Loss The Veteran contends that exposure to loud noise during active service caused his current bilateral hearing loss disability. The Veteran stated that he served as an Army infantryman while on active duty and was exposed to all manner of loud noise, to include the report of rifles, machine guns, and mortars on a regular basis. The Veteran also noted that he was around heavy machines and vehicles that were extremely loud, and that he was rarely afforded hearing protection during active duty service. First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability that comports with VA's definition of disability resulting from hearing impairment. For purposes of applying the laws administered by VA, impaired hearing will be considered to be 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; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Prior to service entrance, the Veteran received an audiological examination as part of his overall military induction physical examination in March 1974. For the test frequencies of 500, 1000, 2000, and 4000 Hertz, the results were 5, 10, 15, and 5 for the right ear, and 5, 5, 5, and 5 for the left ear. The Veteran received another audiological examination when separating from active service in May 1976. Here, for the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 24, 22, 20, 18, and 12 for the right ear, and 26, 16, 12, and 28 for the left ear, showing significant worsening in each ear during active service. In August 2018, the Veteran underwent a VA audiological examination. The report contains minimal information concerning the Veteran's statements during examination but shows that he reported having difficulty hearing his wife's voice. The examiner documented the Veteran's exposure to acoustic trauma in service from his occupational specialties of an infantryman and also his unit's armorer.. The Veteran denied any recreational noise exposure on a regular basis, and he stated he worked in an office environment with his position with the Internal Revenue Service. Examination revealed bilateral sensorineural hearing loss, with both ears showing significant hearing loss at 2000 Hz and higher frequencies. For the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 10, 15, 20, 30, and 45 for the right ear, and 10, 25, 30, 30, and 50 for the left ear. Maryland CNC testing was 92 percent for the right ear, and 86 for the left. The puretone threshold average was 28 decibels for the right ear and 30 for the left ear. In an opinion for service connection also dated August 2018, the examiner concluded that the Veteran's bilateral hearing loss was less likely than not caused by acoustic trauma in service, noting that the Veteran's separation examination showed no complaints of hearing loss, that he had not complained of hearing loss with VA until April 2018, and further opining elsewhere in the examination report that his current hearing loss was more likely related to age. The Veteran received a private audiological examination in August 2019 by a licensed audiologist. This examiner recorded the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz: the results were 20, 20, 30, 35, and 50 for the right ear, and 25, 20, 30, 60, and 60 for the left ear. Maryland CNC testing was 92 percent for the right ear, and 92 for the left. The puretone threshold average was 30 decibels for the right ear and 31 for the left ear. This examiner provided an opinion for hearing loss, saying it was likely, more likely than not, that the Veteran's moderately severe downsloping sensorineural hearing loss was due to his noise exposure in the military. The examiner's rationale was that upon a records review and examination of the Veteran, that the Veteran had a long history of progressive hearing loss starting after his noise exposure while on active duty in the military. This examiner noted the Veteran's military occupational specialty was that of an infantryman assigned with duties as an armorer, responsible for the weapons and ammunition for his unit, to include the use of and qualification in the M16 rifle, the M60 machine gun, various pistols, and short range mortars and grenades. The examiner also noted the Veteran's work since active service was that as an office worker for the Internal Revenue Service away from any hazardous noise on a regular basis. The examiner provided a detailed explanation of the type of noise that caused the Veteran's hearing loss, describing it as impulse noise, characterized by short duration sounds having a shock wave with an almost instantaneous rise time. The examiner explained this is the type of noise that occurs around military firearms, and also that these short duration sounds occur against a relatively quiet background. On VA examination in August 2018 and a private examination in August 2019, two different audiologists diagnosed the Veteran with hearing loss in both ears considered disabling as defined by VA regulations. Thus, the requirement for a current disability is met. Further, the Veteran has stated that during his service he was exposed to significant levels of noise. Specifically, he has argued that his occupational specialty as an infantryman and the unit armorer responsible for the weapons and ammunition for his unit exposed him to hazardous noise without hearing protection. Further, there is no evidence that the Veteran's statements concerning noise exposure are not credible. The August 2019 examiner noted exposure to acoustic trauma in service based on the Veteran's lay statements and his service records. As such, noise exposure in service has been shown. The Board notes a mix of opinion but finds the August 2018 VA audiologist's opinion to be of lesser probative weight because of its conclusory nature with no specifics as to the reasoning of the negative opinion. The Board notes with emphasis that the VA examiner may not have understood what an armorer does in an Army infantry unit, but finds that examiner's rejection of acoustic trauma base on that one assertion to be inadequate at best. This examiner also made no mention or apparent consideration of the Veteran's lay statements, and also made no mention of the worsening of the Veteran's hearing during service. On the other hand, the positive opinion offered by the private August 2019 audiologist based on her audiological examination specifically noted a review of the Veteran's service records and his conclusions referenced detail of the examination and the lay statements of the Veteran, and therefore is considered to be of strong probative value. This private examiner thoroughly opined from the knowledge of the Veteran's entire record, discussed the worsening of hearing in service, and the continued negative changes after service. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Importantly, there is no reason to doubt the credibility of the Veteran's self-reported history of exposure to excessive noise during service, and experiencing a hearing loss during, and since, service. The Board finds the Veteran's lay statements to be both competent and highly credible, based on their consistency with the record. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The record establishes the Veteran has current bilateral hearing loss considered disabling for VA purposes, and the Board has conceded hazardous noise exposure while in service. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. Competent evidence of a current bilateral hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, both examinations establish the presence of bilateral hearing loss. In-service noise exposure is conceded. The Board finds the August 2018 opinion to be of limited probative value because they cite only generalized statements that are conclusory rather than relating the opinion directly to the Veteran's medical and lay evidence. In contrast, the Board finds the August 2019 private medical audiological examination to be highly probative for reasons stated earlier. The Board finds that there is credible evidence of symptoms of hearing loss in service and continuity of symptoms since service. Multiple lay statements from the Veteran all point to continuity of hearing problems for the Veteran since service. When there is an equipoise of evidence, as here, the Veteran prevails on his claims. The Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to his military service. As such, the Board finds a grant of service connection for bilateral hearing loss disability is appropriate. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Evidence and Analysis Tinnitus The Veteran contends that exposure to loud noise during active service caused his current tinnitus disability. The Veteran stated that he served as an Army infantryman while on active duty and was exposed to all manner of loud noise, to include the report of rifles, machine guns, and mortars on a regular basis. The Veteran also noted that he was around heavy machines and vehicles that were extremely loud, and that he was rarely afforded hearing protection during active duty service. The Veteran stated in a lay statement accompanying his notice of disagreement that he has had constant ringing in his ears since active service in both ears, and that it affects his sleep. The Veteran is competent to testify to his own experiences. Further, the United States Court of Appeals for Veterans Claims (Court) has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds the Veteran's claims to be credible and notes that his statements conform to other lay statements and VA treatment records. Thus, noise exposure and acoustic trauma during service are conceded. The Veteran has received regular audiological care at VA facilities for his hearing. An August 2018 VA audiological examination and an August 2019 private audiological examination found tinnitus. Those examinations noted and diagnosed the Veteran's current disability of tinnitus, among other care for the Veteran's hearing loss. Thus, the evidence establishes a current disability of tinnitus. The treating VA audiologist of August 2018 also specifically noted the Veteran had constant tinnitus in both ears that began "shortly after [the Veteran] got out like in early 1976." The private August 2019 examiner noted that the Veteran's diagnosed tinnitus was at least as likely as not, at least 50 percent probability, related to active service, based on his noise exposure during his active Army service, for the reasons that were mentioned earlier regarding the bilateral hearing loss analysis. With respect to the final element of nexus, the Veteran has credibly stated that he has experienced tinnitus persistently during and after active duty. This testimony is sufficient to establish a nexus between the Veteran's current tinnitus and the in-service incurrence. This is because for certain chronic disorders, shown as such in service, so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2020). Tinnitus caused by acoustic trauma is considered is among the chronic diseases listed under 38 C.F.R. § 3.309(a) (2020). See Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Therefore, a presumption of service connection for chronic diseases under 38 C.F.R. § 3.303(b) applies to this tinnitus claim, and the third service connection element is satisfied. The Board acknowledges a negative rating decision for service connection for tinnitus in August 2018, but also notes that the August 2019 private audiologist provided a positive opinion for service connection. When the evidence is in equipoise and there is reasonable doubt, as here, the Board gives the benefit of the doubt in favor of the Veteran. The current legal guidance from 38 C.F.R. §§ 3.303(b) and 3.309(a) and Fountain v. McDonald also supports the Board's decision regarding service connection for the Veteran's claimed tinnitus. See Fountain, 27 Vet. App. 258, 263 (2015); see also Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (stating that "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service"). Resolving all reasonable doubt in favor of the Veteran, his tinnitus cannot be satisfactorily disassociated from service. Thus, giving the Veteran the benefit of the doubt, all elements required to establish service connection for tinnitus have been satisfied, and service connection is warranted. 38 C.F.R. § 3.102 (2020). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.