Citation Nr: 21040158 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-44 433 DATE: July 2, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT Left ear hearing loss and tinnitus had their onset in service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss and tinnitus have been met. 38 U.S.C. §§ 101, 106, 1101, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from August 1976 to August 1980 as well as had additional service with a Reserve Component. In August 2019, a Veterans' Law Judge not the undersigned issued a Board of Veterans' Appeal (Board) decision that denied the claim of service connection for tinnitus and remanded the claim of service connection for bilateral hearing loss. The Veteran appealed the August 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the November 2019 Board decision to the extent that it denied service connection for tinnitus. The Service Connection Claims The Veteran asserts, in substance, that service connection is warranted for his left ear hearing loss and tinnitus because they were caused by acoustic trauma by his service on an aircraft carrier, the U.S.S. Constellation, for four years as a boatswain's mate. Specifically, the Veteran notified VA that while on active duty he had daily exposure to jet aircraft engine noise while serving on the U.S.S. Constellation because physical training was carried out on the flight deck within 100 deet of the aircraft taking off and landing and his duties maintaining the ship took place in and around the flight deck. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The United States Court of Appeals for Veterans Claims (Court) in Hensley also held that "audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss." Hensley, 5 Vet. App. at 157. Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement 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." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the Veteran has a diagnosis of left ear hearing loss as defined by VA and tinnitus. See, e.g., VA examination dated in April 2018. Next, the Veteran's DD 214 lists' his occupational specialty as boatswain's mate as well as shows that he served on the aircraft carrier the U.S.S. Constellation. Additionally, the Board finds the Veteran both competently and credibly reported being exposed to jet engine noise while conducting physical training and maintaining the ship serving as a boatswain's mate on the U.S.S. Constellation. See Davidson, supra. Given this record and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he had an injury (i.e., acoustic trauma) while on active duty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Further, given the nature of the Veteran's service (i.e., boatswain's mate on the U.S.S. Constellation being exposed to jet engine noise on the flight deck while conducting physical training and maintaining the ship) it is reasonable for the Board to find that he had problems with ringing in his ears and difficulty hearing in his left ear during and since being exposed to jet engine noise while on active duty as a boatswain's mate on the U.S.S. Constellation. See Davidson, supra; Owens, supra. Tellingly, the May 2021 VA examiner also opined that the Veteran's tinnitus was aggravated by his hearing loss and this medical opinion is not contradicted by any other medical evidence of record. See 38 C.F.R. § 3.310; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). However, the April 2018, January 2020, and/or May 2021 VA examiners opined that the Veteran's tinnitus and left ear hearing loss were not due to his military service. In this regard, because as noted by the JMPR the April 2018 VA examiner's negative etiology opinion is not adequately because, among other things, it did not provide a rationale for the hearing loss not being due to military service; because symptoms of hearing loss and tinnitus in and since service are observable by a lay person; and because the neither the April 2018, January 2020, or the May 2021 examiner appeared to consider the Veteran's competent and credible lay claims regarding in-service acoustic trauma due to exposed to jet engine noise on the flight deck while conducting physical training and maintenance as a boatswain's mate on the U.S.S. Constellation, the Board finds that the Veteran's claims of having observable symptoms of left ear hearing loss and tinnitus in and since service are just as probative as the VA examiners opinions. See Davidson, supra; Owens, supra. Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran had problems with left ear hearing loss and tinnitus since service is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Accordingly, the Board finds that service connection for left ear hearing loss and tinnitus is warranted. 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. §§ 3.303, 3.385. REASONS FOR REMAND Entitlement to service connection for right ear hearing loss is remanded. As to the claim of service connection for right ear hearing loss, a review of the record on appeal does not reveals that the Veteran has as of yet been diagnosed with hearing loss in the right ear as defined by VA not an adequate etiology opinion. Therefore, in January 2020, the Board again remanded the issue to provide the Veteran with a VA examination to obtain the missing diagnosis as well as an adequate etiology opinion. Moreover, the post-Remand record shows that the Veteran was afforded a VA examination in January 2020 at which time audiological testing did not show that the appellant had hearing loss in the right ear as defined by VA. However, the January 2020 VA examiner in an addendum dated later in January 2020 also notified the RO, in substance, that accurate audiological testing of the right ear could not be carried out at the examination because of cerumen in the right ear because of the cerumen and the Veteran should be scheduled for another examination after the cerumen had been removed. Tellingly, while the post-Remand record shows that the RO in May 2021 obtained a medical opinion linking the Veteran's sub-threshold hearing loss in the right ear to his military service, it does not show that it thereafter afforded him another audiological examination to see if, after the cerumen was removed, he had hearing loss in the right ear as defined by VA. Give this record, the Board finds that another Remand is required to provide the Veteran with a new VA audiological examination to once again try to obtain an adequate medical opinion as to whether the Veteran has hearing loss in the right ear as defined by VA. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While this issue is in Remand status, any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records (if any). 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records (if any). If possible, the Veteran himself or his representative should submit any new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 3. In order to comply with the last Remand, provide the Veteran with a VA examination to obtain a medical opinion as to whether he has hearing loss in the right ear as defined by VA. The notice of the VA examination should specifically adverse the Veteran to have the cerumen in his right ear removed before attending the examination so accurate audiological findings may be provided by that examiner. The claims folder should be made available to and reviewed by the examiner. Thereafter the examiner should provide the results from the audiological examination of the Veteran's right ear. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.