Citation Nr: 21040093 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-03 189 DATE: July 2, 2021 ORDER The petition to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss is granted. The petition to reopen the previously denied claim for entitlement for service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. An April 2015 rating decision last denied service connection for bilateral hearing loss and tinnitus. 2. Evidence pertaining to the Veteran's bilateral hearing loss and tinnitus since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims. 3. The Veteran has a current diagnosis of bilateral hearing loss and tinnitus. 4. The most probative evidence of record establishes that the Veteran's bilateral hearing loss is caused by, related to, or aggravated by, his active duty. 5. The most probative evidence of record establishes that the Veteran's tinnitus is caused by, or related to, his active duty. CONCLUSIONS OF LAW 1. An April 2015 rating decision that last denied service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the last final April 2015 rating decision is new and material, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The evidence received since the last final April 2015 rating decision is new and material, and the claim for service connection for tinnitus is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 2003 to February 2006. The Veteran testified at an August 2020 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus. The Veteran most recently filed a request to reopen his claims for entitlement to service connection for bilateral hearing loss and tinnitus in March 2017. At the time of the last final denial of the Veteran's claims for service connection for bilateral hearing loss and tinnitus in April 2015, evidence of record included the Veteran's application for compensation, statement in support of claim, service treatment records (STRs), and a VA examination. Evidence associated with the claims file since the previous April 2015 denial includes the Veteran's Board hearing testimony, military personnel records, and VA treatment records. Based on a review of this new evidence, the Board finds that new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for bilateral hearing loss and tinnitus are reopened Service Connection 3. Entitlement to service connection for bilateral hearing loss is granted. 4. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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, service connection for certain chronic diseases, including sensorineural hearing loss and tinnitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, 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. Thus, when no pre-existing condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, if a pre-existing disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). Where a pre-existing disease or injury is noted on the entrance examination, section 1153 of the statute provides that a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In considering whether to apply the presumption of aggravation, the Board must first determine whether there was an increase in the disability's severity and, if so, whether it was beyond the natural progression of the disease. 38 C.F.R. § 3.306(a). The claimant bears the burden of showing that the pre-existing condition worsened in service. Wagner, supra. Until the claimant shows that an increase in disability occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary. Once the presumption has been established, the burden shifts to the Government to show by clear and unmistakable evidence that the increase in disability was a result of the natural progress of the disease. Id.; see also Horn v. Shinseki, 25 Vet. App. 231 (2011). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). In relevant part, 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 or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[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 at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). According to the STRs, the Veteran had left ear hearing loss, for VA purposes, on the July 2002 enlistment examination. The audiogram testing throughout his service indicate that the Veteran experienced a threshold shift in both the right and left ears from enlistment to separation from service. The Veteran's military personnel records further show that the Veteran was exposed to artillery and ammunitions according to his military occupational specialty (MOS) as field artillery cannoneer. On the April 2015 VA hearing loss and tinnitus examination, the examiner indicated the Veteran has a diagnosis of bilateral sensorineural hearing loss and tinnitus. The examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by service. The examiner reasoned that a review of the STRs indicated pre-existing bilateral hearing loss at the time of entrance to active service. The examiner stated there was no significant shift in hearing levels at separation; therefore, it is less likely that the hearing loss is a result of or was aggravated by military noise exposure. The examiner remarked that the Veteran was exposed to artillery, mortars, and explosions with ear protection worn in training and in combat in Iraq. Pre-military the Veteran reported he worked in a foundry for a year and was exposed to machinery with ear protection worn. The Veteran stated that post-military he worked for a retailer in distribution and denied any noise on the job. For the three weeks prior to examination, the Veteran worked in construction and is exposed to compressors and nail guns with use of ear protection. The examiner found the Veteran does not participate in hobbies that expose him to excessive noise. In relation to tinnitus, the April 2015 VA examiner noted the Veteran reported recurrent tinnitus with onset in service. The examiner stated that she cannot provide a medical opinion regarding etiology since there is no documentation of tinnitus in the Veteran's STRs, based on the Veteran's history of in-service and post-service noise exposure. The examiner opined that it is not possible to determine if the tinnitus is related to in-service noise exposure without resorting to mere speculation. At the August 2020 Board hearing, the Veteran testified he was never advised that he had hearing loss prior to service. Board Hearing Transcript (T.) at 2. The Veteran stated his hearing loss was aggravated by exposure to acoustic trauma. T. at 2-3. He stated that he experienced noise from Howitzers. T. at 3. He testified he was a cannoneer and was by the breech when he pulled the trigger. Id. The Veteran stated that although he was provided with hearing protection, he still heard the artillery fire. Id. The Veteran stated he first noticed difficulty hearing during service. T. at 5. He stated he has had difficulty hearing since service. Id. He also stated he began to experience tinnitus in service. Id. The Veteran stated he was first told he had hearing loss on his separation examination. T. at 4. He testified that tinnitus was also discussed. Id. Upon review of the record, the Board finds that the most probative evidence of record establishes that the Veteran's bilateral hearing loss and tinnitus are related to his active service. The Veteran's STRs reveal that he had normal hearing in the right ear for VA disability purposes and left ear hearing loss for VA disability purposes. However, the Board notes that the audiometric data throughout service and at separation included increased puretone thresholds in the frequency range of 500 to 4,000 Hertz. In addition, the Board has carefully reviewed the Veteran's Board hearing testimony. The Veteran stated, and his MOS supports, that he was exposed to artillery fire. The Board finds that the Veteran, as a lay person, is competent to testify to having been exposed to loud noises during service and experiencing decreased hearing acuity and tinnitus. See Layno, 6 Vet. App. at 470. Moreover, there is no evidence to doubt his credibility. The Veteran's statements also reflect an in-service onset and continuity of symptomatology of hearing loss and tinnitus. Accordingly, the Board assigns great probative weight to the Veteran's statements regarding the inception and persistence of his hearing loss and tinnitus. 38 C.F.R. § 3.303(b). The Board acknowledges that the Veteran's left ear hearing loss pre-existed his service and was noted at entry on the July 2002 enlistment examination. Thus, the presumption of soundness does not apply. Further, the Board finds the Veteran's left ear hearing loss underwent in increase in severity during service and that increase is due to in-service noise exposure from artillery fire, and not clearly and unmistakably due to the natural progression of the hearing loss. As the left ear hearing loss worsened during service and the worsening persisted, and is beyond the natural progression of the disability, the Board finds that service connection is warranted for left ear hearing loss. Although the April 2015 VA examination confirmed a current diagnosis for bilateral hearing loss and tinnitus, the examiner did not address the threshold shifts in service, the Veteran's statements regarding the in-service onset of symptoms, and the continuity of symptoms. One of the examiner's reasons for the negative or lack of a nexus opinion is no documentation of complaints in service. Therefore, the Board finds that the April 2015 VA opinion is less persuasive with respect to the question of nexus because the examiner did not address the Veteran's threshold shift in hearing acuity from enlistment to and separation from service, statements related to onset, and continuity of symptoms. Accordingly, the Board assigns less probative weight to the opinion. As such, based on the most probative evidence of record, the Board finds that the Veteran's right ear hearing loss is caused by service. The Board further finds that the Veteran's pre-existing left ear hearing loss was aggravated beyond its natural progression by service. Finally, the Board finds that the Veteran's tinnitus was caused by active service. Therefore, service connection for bilateral hearing loss and tinnitus is warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.