Citation Nr: 21042364 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-19 044 DATE: July 12, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Right ear hearing loss was aggravated by service. 2. Resolving reasonable doubt in the Veteran's favor, his left ear hearing loss is at least as likely as not related to in-service noise exposure 3. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to April 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The record was held open for 60 days for the Veteran, or his representative, to submit additional evidence. No evidence relevant to the current claim was received within the 60 days, or anytime thereafter. A transcript is included in the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). SERVICE CONNECTION Service connection laws and regulations Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). The presumptive chronic diseases include organic diseases of the nervous system, to include sensorineural hearing loss and tinnitus associated with acoustic trauma. See Fountain v. McDonald, 27 Vet. App. 258 (2016). Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 40 decibels or more; or when the 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. The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Id. at 159. The provisions of 38 U.S.C. § 1111 indicate that 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, or 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. The Board also notes that there is a General Counsel Opinion on the matter of rebutting the presumption of sound condition on service entrance. See VAOPGCPREC 3-2003 (July 16, 2003). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting 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. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104. 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 such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual summary The Board has acknowledged that service department records dated prior to November 1, 1967 are presumed to use the American Standards Association (ASA) standard, rather than the current International Standards Organization-American National Standards Institute (ISO-ANSI) standard. Conversion to ISO-ANSI units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard. The figures converted to ISO-ANSI are shown in parentheses in the following May 1965 entrance examination audiogram in which his pure tone thresholds, in decibels, were as follows: 05/18/1965 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 5 (15) 15 (25) 15 (25) 35 (40) N/A N/A LEFT 10 (20) 10 (20) 10 (20) 0 (5) N/A N/A Service treatment records (STRs) include a separation examination audiogram conducted in October 1967. The pure tone thresholds, in decibels, were as follows in which the figures converted to ISO-ANSI are shown in parentheses: 10/04/1967 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 5 (15) 0 (10) N/A 40 (45) N/A N/A LEFT 5 (15) 0 (10) N/A 20 (25) N/A N/A The Veteran underwent an in-person VA examination for hearing loss and tinnitus in September 2018. The examination report noted review of the claims file and medical records, and recounted the Veteran's complaints and history. The Veteran stated his hearing loss causes him to be unable to make out words plainly. He denied noise exposure prior to and since service. He reported military noise exposure from weapons, artillery, large vehicles, and diesel trucks without hearing protection. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 09/04/2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 70 80 85 69 46 LEFT 30 60 65 70 56 84 The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. Regarding etiology, the examiner did not find a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 1000 and 4000 Hertz for the right or left ear. The examiner opined, the Veteran's bilateral hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner further opined that his hearing loss existed prior to service, and that the pre-existing hearing loss was not aggravated beyond its normal progression in military services. The rationale was that the entrance examination from May 1965 indicated mild hearing loss at 4000 Hertz for the right ear. In comparison, the separation examination in October 1967 indicated mild hearing loss at 4000 Hertz for the right ear. As such, there were no significant decreases in thresholds for either ear from 1965 to 1967. The examiner opined that the pre-existing bilateral hearing loss did not worsen. In addition, the Veteran underwent an in-person VA examination in December 2018. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 12/19/2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 75 85 85 73 58 LEFT 35 60 65 75 59 80 The examiner was asked to specifically address the left ear since hearing was normal in the left ear for VA rating purposes at the time of the May 1965 entrance examination and at the time of the October 1967 separation. The examiner opined that the Veteran's current left ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The rationale provided was that a comparison of the entry examination to the separation examination did not reveal a permanent positive threshold shift at separation. Further, the examiner opined that left ear hearing loss existed prior to service, and the pre-existing left ear hearing loss was not aggravated beyond its normal progression in military service. The Board notes that there is no evidence of record indicating that the Veteran had left ear hearing loss by VA standards under 38 C.F.R. § 3.385 prior to entering service and/or noted at entry. Because parts of the examiner's opinion were based on inaccurate facts, the Board does not find the opinion probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) In an October 2020 hearing, the Veteran testified that he operated a five-ton truck with double exhaust, driving 90 miles per trip on a daily basis. There were 15 to 20 trucks in a convoy and "it was very noisy." 1. Entitlement to service connection for right ear hearing loss In this case, there is a question as to whether the Veteran's right ear hearing loss manifested during his military service from May 1965 to April 1967. The May 1965 entrance examination audiogram reveals that at 4000 Hertz, the Veteran's pure tone thresholds of his right ear measured as 35 decibels under ASA standards, which converts to 40 decibels under ISO-ANSI standards. Under 38 C.F.R. § 3.385, this is hearing loss. Nonetheless, the entrance examination is absent of any notations of defects, infirmities, or disorders. In fact, it was determined that the Veteran was qualified for service. Based on the foregoing, the Board finds that the Veteran is entitled to the presumption of soundness for the right ear. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Under the first prong, there is clear and unmistakable evidence that the Veteran's right ear hearing loss preexisted service. In pertinent part, the May 1965 entrance examination reveals his right ear measured at 40 decibels under ISO-ANSI standards, 4000 Hertz. Under 38 C.F.R. § 3.385, this is hearing loss. While there is evidence to rebut the first prong of the presumption of soundness as the Veteran's right ear hearing loss pre-dated service, there is not ample evidence to rebut the second prong of the presumption of soundness. Under the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Here, there is not clear and unmistakable evidence that preexisting right ear hearing loss was not aggravated during service. To the contrary, the Veteran credibly testified that he operated a five-ton truck with double exhaust, driving 90 miles per trip on a daily basis. There were 15 to 20 trucks in a convoy and "it was very noisy." He also testified he was around a lot of gunfire, with no ear protection. The Board finds he was exposed to acoustic trauma. Because his May 1965 entrance examination explicitly noted that no hearing defect existed, he is presumed sound upon entry. While the audiometric testing conducted at induction clearly and unmistakably establishes pre-existing right ear hearing loss, there is no affirmative evidence that his hearing loss was not aggravated. Indeed, the evidence indicates that he was exposed to acoustic trauma. Moreover, the pure tone thresholds at the tested frequency of 4000 Hertz for his right ear measured at 40 decibels during his May 1965 entrance examination and 45 decibels during his October 1967 separation examination. The shift demonstrates a worsening that manifested during service. Therefore, the Board finds that there is no clear and unmistakable evidence against aggravation, and the Veteran's right ear hearing loss is therefore presumed aggravated by service. Accordingly, the claim for service connection for right ear hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for left ear hearing loss The Board finds that the evidence is at least in equipoise as to whether the Veteran's left ear hearing loss is related to in-service noise exposure. The Board recognizes that the Veteran was diagnosed with bilateral hearing loss for VA ratings purposes under 38 C.F.R. § 3.385. Additionally, the Board finds that the Veterans credible testimony from the October 2020 hearing regarding exposure to acoustic trauma while in service is supported by STRs. Here, his May 1965 entrance examination did not reflect hearing loss. Specifically, at the tested frequency of 4000 Hertz, his pure tone thresholds measured at 0 decibels under ASA standards, which converts to 5 decibels under ISO-ANSI standards. However, his October 1967 separation examination audiogram revealed that his pure tone thresholds at the tested frequency of 4000 Hertz measured at 20 decibels under ASA standards, which converts to 25 decibels under ISO-ANSI standards. Although this does not constitute hearing loss under 38 C.F.R. § 3.385, it does demonstrate a 20 decibel shift from his May 1965 entrance examination and October 1967 separation examination. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. This demonstrates that he likely experienced acoustic noise trauma while in the service. Thus, the first and second elements of service connection are established for each claim. See Shedden, 381 F.3d at 1167. As to a medical nexus, the Board acknowledges the September 2018 and December 2018 VA examinations; however, in rendering nexus opinions, the examiners did not rely on accurate facts. Specifically, that the Veteran had left ear hearing loss prior to service. This is not supported by the record. Additionally, the examiners did not consider the Veteran's likely exposure to acoustic noise trauma while in service. As such, the September 2018 and December 2018 VA opinions are of limited probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Affording all benefit of the doubt to the Veteran, to include his testimony of acoustic trauma while in service, the evidence is at least in equipoise as to whether the Veteran's left ear hearing loss was caused by service. For these reasons, the Board finds that left ear hearing loss was caused by service. Accordingly, the claim for service connection for left ear hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for tinnitus The Veteran claims his tinnitus is related to in-service noise exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds service connection is warranted. Turning to the evidence, STRs do not reflect any symptoms, diagnosis, or treatment for tinnitus. VA treatment records from September 2005 include an audiology consult. The Veteran reported constant tinnitus in both ears that sounded like ringing. At the October 2020 hearing, the Veteran testified he was exposed to acoustic trauma while in the military and now has constant tinnitus. He reports he did not wear adequate noise protection. The Veteran's assertions of noise exposure are reasonably supported by his service records, including his Certificate of Release or Discharge from Active Duty. In the September 2018 VA examination report, the Veteran reported intermittent bilateral humming, or static tinnitus, occurring once per year and beginning approximately 20 years ago. The examiner concluded an opinion could not be provided as to the etiology of the Veteran's tinnitus without resorting to speculation. The examiner highlighted bilateral hearing loss upon entry into service; no complaints of tinnitus in his STRs; and lay statements made by the Veteran that his tinnitus began after he was discharged from service. It was reasoned, an etiology could not be provided for tinnitus as there are many etiologies. The examiner did state, however, that it is not likely that his currently reported tinnitus is related to his military service. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is related to service. The evidence is in relative equipoise that the tinnitus is directly related to service. Evidence weighing in favor of this finding includes the Veteran's exposure to acoustic trauma in service, as described above. Moreover, the Board has granted service connection for hearing loss based on similar assertions of in-service noise exposure. The Board acknowledges the September 2018 VA examination. However, the Board affords less probative weight to the medical opinion, as the examiner was unable to opine without resort to mere speculation as to the etiology of the Veteran's tinnitus. Similar to sensorineural hearing loss, tinnitus is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured." Fountain, 27 Vet. App. at 266 (2015) (quoting VA Training Letter 10-02). More specifically, in Fountain, the Court referenced VA Training Letter 10-02, in addition to other medical and legal authority, and noted that chronic sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, were considered conditions listed under 38 C.F.R. § 3.309(a), were due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain, and were commonly caused by chronic exposure to excessive noise, in addition to age-related hearing loss. The Court noted that chronic sensorineural hearing loss and tinnitus caused by acoustic trauma resulted in damage to the inner ear and was an organic disease of the nervous system under 38 C.F.R. § 3.309. Because the Veteran sustained trauma that caused the service-connected hearing loss, by necessary logical inference, the current tinnitus is likely related to the same trauma. The Board finds that, based upon both medical and legal authority, the in-service acoustic trauma reasonably leads to the conclusion that current tinnitus is related to service. For the reasons discussed above and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted as directly related to service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.