Citation Nr: 22016365 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-16 083 DATE: March 22, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability for VA purposes. 2. It is at least as likely as not that the Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107, 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); 3.385. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107, 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1977 to December 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision, which denied service connection for bilateral hearing loss and tinnitus. The issue of entitlement to service connection for bilateral hearing loss was previously before the Board in September 2021, at which time, the issue was remanded to the AOJ for further evidentiary development, including, scheduling the Veteran for a VA examination to determine the etiology and current severity of the Veteran's claimed hearing loss. Additionally, the Board remanded the Veteran's claim to obtain relevant medical records pertinent to the Veteran's claim. For the reasons stated in the discussion below, the Veteran was afforded an adequate VA examination and the AOJ has substantially complied with the September 2021 remand directives, with respect to the issue of entitlement to service connection for bilateral hearing loss. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the issue of entitlement to service connection for bilateral hearing loss is appropriate for resolution. The issue of entitlement to service connection for tinnitus was previously referred to the AOJ in September 2021, in order for the AOJ to issue a statement of the case (SOC) in response to the Veteran's February 2017 tinnitus claim. The Veteran filed a claim of entitlement to service connection for tinnitus in August 2014, which was denied in a September 2015 rating decision. In March 2016, the Veteran filed a notice of disagreement with the September 2015 rating decision. In March 2016, the Veteran submitted a February 2016 VA treatment record which reflected a diagnosis of subjective tinnitus. In March 2016, the Veteran submitted a statement entitlement "Withdraw Appeal" and stated that new evidence had been submitted for reconsideration and requested withdrawal of the letter of notice of disagreement. In May 2016, the Veteran filed a claim for entitlement to service connection for tinnitus. In June 2016, the AOJ notified the Veteran that action on his appeal for tinnitus had been discontinued, and notified the Veteran that he had until October 1, 2016, to provide the AOJ with information regarding whether he intended to withdraw his appeal for tinnitus. In February 2017, the Veteran filed a claim of entitlement to an increased rating for tinnitus. In March 2017, the Veteran filed an appeal to the Board, and indicated that he was only appealing the issue of entitlement to service connection for bilateral hearing loss; and requested a hearing. In an April 2017 rating decision, the AOJ notified the Veteran that his February 2017 claim had been received. The AOJ also notified the Veteran that the issue of tinnitus would be addressed separately from the rating decision, as that contention was on appeal, and would be completed by the appeal board. The AOJ noted that the Veteran had never been granted service connection for tinnitus, and it was not clear if the Veteran had intended to file a claim for service connection for tinnitus, as the February 2017 claim had been for an increased rating for tinnitus. The AOJ notified the Veteran that it was unclear whether the Veteran wanted to reopen the denial or the appeal along with the bilateral hearing loss claim and requested that the Veteran notify the AOJ of how he wanted to proceed. Considering the evidence as outlined above, the Board finds that the September 2015 rating decision which denied entitlement to service connection for tinnitus is not final, with respect to this issue. A determination does not become final if new evidence is added during the appellate period and this evidence is not properly acted upon by the AOJ. See 38 C.F.R. § 3.156(b). Effectively, this means that the finality of the decision remains tolled until there has been a reconsideration of the claim in light of the new evidence. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). In this case, the Veteran submitted a February 2016 VA treatment record, which revealed a current diagnosis of tinnitus. However, there was no subsequent readjudication of the Veteran's claim of entitlement to service connection based upon this treatment record. As such, the Veteran's August 2014 claim has remained pending. Further, the Board notes that in light of the Veteran's submission of the February 2016 VA treatment record in March 2016, and the Veteran's subsequent claim of entitlement to service connection for tinnitus in May 2016, the Board finds that the March 2016 statement titled, "Withdraw Appeal," when read in a light most favorable to the Veteran, was not an actual withdrawal of the Veteran's notice of disagreement, rather, it was an attempt by the Veteran to submit a supplemental claim. Further, the April 2017 rating decision was internally contradictory, in that it initially indicated that the Veteran had a current appeal pending for his claim of entitlement to service connection for tinnitus; and then later indicated that the Veteran did not have a current claim of entitlement to tinnitus which was pending on appeal and requested that the Veteran indicate how he wanted to proceed with regards to that claim. Although, there does not appear to be a timely filed substantive appeal of the Veteran's claim of entitlement to service connection for tinnitus; the April 2017 rating decision indicated that the Veteran had a pending appeal with the Board with regards to the Veteran's claim of entitlement to service connection for tinnitus. When VA takes actions leading the Veteran to believe his appeal was perfected, it waives any objection to an untimely substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Accordingly, the Board has taken jurisdiction over the claim of entitlement to service connection for tinnitus; and has added the issue of entitlement to service connection for tinnitus to the issues on appeal. Prior to remanding this case, the Board held a hearing and the Veteran appeared before the Board and testified during that hearing on May 5, 2021. A transcript of the Veteran's testimony is included in the claims file for this case and the Board considered it carefully in reaching this decision. The Veterans Law Judge who conducted that hearing subsequently retired and is no longer available to participate in this decision. On December 27, 2021, the Board notified the Veteran that he could request to appear before a newly assigned Veterans Law Judge for another hearing. On January 13, 2022, the Veteran filed a response declining a new hearing and requesting that the Board issue a decision on his appeal. Thus, this case is properly before the undersigned Veterans Law Judge for decision. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus. See 38 C.F.R. § 3.303(b). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Consideration of continuity of symptomatology is required only where a condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent lay or medical evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he asserts is related to service. For the 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, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; 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; see also McKinney v. McDonald, 28 Vet. App. 15, 25 (2016) (holding that a minimum degree of hearing loss is a prerequisite for entitlement to service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting regulatory requirements for hearing loss disability for VA compensation purposes (i.e., under 38 C.F.R. § 3.385), and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155 (1993). To establish entitlement to service connection, it is not required that a hearing loss disability by these standards of 38 C.F.R. § 3.385 be demonstrated during service, including at time of separation, although a hearing loss disability by these standards must be currently present, and service connection is possible if this current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley, supra (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). Based upon a review of the evidence, for reasons set forth below, the criteria for service connection for bilateral hearing loss are not met. The Veteran's December 1997 DD-214 notes that the Veteran's military occupational specialty (MOS) was Patriot operator and system mechanic, which has been shown to have a "highly probable" probability of exposure to hazardous noise. A January 1977 examination report for enlistment revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 0 LEFT 10 0 0 5 Audiological examinations from January 1979 to November 1990 indicate that the Veteran had normal bilateral hearing during service. 38 C.F.R. § 3.385; see also McKinney, supra. A January 1979 audiological examination revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 5 LEFT 10 10 5 5 5 An April 1983 audiological examination revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 5 LEFT 5 5 5 10 5 A January 1984 audiological examination revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 5 LEFT 20 5 5 10 0 A September 1986 audiological examination revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 10 5 LEFT 10 10 5 5 5 An April 1990 audiological examination revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 0 10 10 LEFT 0 5 5 10 0 A November 1990 audiological examination revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 0 10 10 LEFT 0 10 5 10 0 Post service medical records reflect that the Veteran does not have a current hearing loss disability for the purposes of applying the laws administered by VA. In August 2014, the Veteran stated that he was in the US Army for 20 years, and during that time, he worked on Hawk Missiles Systems as well as the Patriot Missiles System, around loud generators and radars with loud blowers and motors. He stated that he used hearing plugs, but it still took a toll on his hearing; and in later years he began having problems, which he had been dealing with for years. The Veteran was afforded a VA examination in November 2014 which indicated normal right ear hearing and sensorineural hearing loss of the left ear in the frequency range of 6000 Hz or higher frequencies. The examiner indicated that although the Veteran may have had impaired hearing, it did not meet the criteria to be considered a disability for VA purposes. On the November 2014 VA audiological examination pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 20 20 LEFT 10 10 5 15 20 Speech audiometry, using the Maryland CNC word list, revealed speech recognition of 96 percent for the right ear and 94 percent for the left ear. The November 2014 VA examiner opined that the Veteran's claimed right ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service because audiological results showed that the Veteran's right ear hearing was clinically normal. Further, the examiner opined that the Veteran's claimed left ear hearing loss was not at least as likely as not caused by or a result of an event in military service, because the audiological results only showed hearing loss at extremely high frequencies, 6000 Hz, and it did not meet the criteria to be considered a disability for VA purposes. During a February 2016 audiological consultation, the Veteran reported a history of military service and related noise in the Army, as well as occupational noise, at an auto factory. An audiological evaluation revealed that the Veteran's hearing was within normal limits bilaterally. The audiologist noted that speech recognition thresholds were in agreement with pure tone average and revealed a mild degree of signal to noise ratio loss bilaterally. The audiologist noted that the Veteran was expected to have some difficulty hearing in background noise based upon the findings. In May 2021, the Veteran testified that he noticed that his hearing had changed during service and had continued to worsen since separation from service. The Veteran also testified that he had been with his spouse since the 1970s; and she had always complained about the volume of the television. The Veteran also testified that he had been exposed to occupational noise following service and wore hearing plugs. The Veteran testified that his bilateral hearing loss had been continuously worsening. See also February 2016 VA examination. Pursuant to the September 2021 Board remand, the Veteran was afforded a VA examination in October 2021, which revealed normal bilateral hearing. The October 2021 VA examination determined the current severity of the Veteran's bilateral hearing loss, and thus complied with the Board's September 2021 remand instructions in this regard. On the October 2021 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 25 20 LEFT 20 15 20 25 20 Speech audiometry, using the Maryland CNC word list, revealed speech recognition of 96 percent bilaterally. Based on the evidence as outlined above, service connection for bilateral hearing loss is not warranted, because there is no clear objective evidence that the Veteran has a current hearing loss disability for VA purposes. Service connection cannot be granted if there is no present disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385. Based upon the Veteran's MOS, which has been shown to have a "highly probable" probability of exposure to hazardous noise; and the Veteran's competent and credible statements that he was exposed to loud generators and radars with loud blowers and motors and used hearing plugs, it is conceded that the Veteran was exposed to hazardous noise during service. Consideration shall be given to the places, types, and circumstances of a veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The Veteran has competently and credibly stated that he began experiencing hearing loss in service and it has continuously worsened since service. 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, these lay statements are not considered competent or probative evidence of whether the Veteran has a current hearing loss disability for VA purposes. The clinical evidence of record indicates that the Veteran does not have a current disability for VA purposes. As noted, although the Veteran has a current diagnosis of sensorineural hearing loss, the Veteran's auditory thresholds do not meet the requirements to be considered a disability for VA purposes. At no time during the period on appeal has the Veteran's auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz been 40 dB or greater, 26 dB or greater in at least three of the frequencies, and the Veteran did not have a speech recognition score of less than 94 percent. Additionally, there is no evidence that reflects hearing loss which manifested in service or within the one-year presumptive period, therefore the chronic disease provisions for service connection are not for application. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110. Thus, where, as here, competent, probative evidence establishes that the Veteran has not at any time during the pendency of the claim or prior thereto had a hearing loss disability for which service connection is sought, there can be no valid claim for service connection. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). Cf. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). As such, service connection for hearing loss is denied because the first criterion for an award of service connection evidence of a current disability upon which to predicate such an award has not been met. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for bilateral hearing loss is warranted; thus, the benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application) 2. Entitlement to service connection for tinnitus The Veteran claims entitlement to service connection for tinnitus which he asserts is related to service. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus has been met. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). Service connection for tinnitus may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service findings of tinnitus, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to being clearly attributable to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155 (1993). Based upon a review of the evidence, for reasons set forth below, the criteria for service connection for bilateral hearing loss are not met. As noted, the Veteran's MOS was Patriot operator and system mechanic, which has been shown to have a "highly probable" probability of exposure to hazardous noise. Service treatment records are silent as to any complaints, treatment or clinical diagnosis for tinnitus. In August 2014, the Veteran stated that he was in the US Army for 20 years, and during that time, he worked on Hawk Missiles Systems as well as the Patriot Missiles System, around loud generators and radars with loud blowers and motors. The Veteran was afforded a VA examination in November 2014 which indicated that the Veteran did not report current tinnitus. A February 2016 VA audiological consultation reflects a diagnosis of subjective tinnitus. The Veteran reported longstanding frequent bilateral tinnitus, which had become bothersome to him; and he reported a history of military service and related noise in the Army, as well as occupational noise, at an auto factory. The treatment provider noted the possible etiology of the Veteran's tinnitus was discussed with the Veteran. However, the treatment provider did not indicate the details of the discussion. In May 2021, the Veteran testified that he constantly had ringing in his ears; and he testified that a treatment provider opined that his work in the military around high noises was related to his tinnitus. Pursuant to the September 2021 Board remand, the Veteran was afforded a VA examination in October 2021 for hearing loss, which revealed a diagnosis of tinnitus. During the examination, the Veteran reported that his tinnitus began approximately 10 years or more; and that his tinnitus was intermittent; and occurred at various times for up to 10 minutes at a time. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner noted that there was no significant shift in hearing from enlistment to separation beyond test variability, and there was no evidence of permanent auditory damage from conceded noise on active duty. The examiner noted that there was no report of tinnitus, acoustic trauma or hearing loss at separation; and the onset of tinnitus was reported as approximately at least 10 years ago, more than 10 years post-separation. The examiner noted that although Veteran had an MOS with high probability of hazardous noise exposure, and noise exposure was conceded and the relationship between noise, auditory damage and tinnitus was well documented; the objective evidence was against a nexus in this case. The Board has carefully reviewed the evidence of record and finds that it is at least as likely as not that the Veteran's tinnitus had its onset in service. The Board finds that based on the Veteran's complaints of tinnitus, and the and his conceded noise exposure in-service the Veteran meets the first two requirements of service connection. Tinnitus claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. The Veteran has competently and credibly stated that he has had tinnitus for more than 10 years. The Veteran's statements support a finding that his tinnitus is related to service. The October 2021 VA examiner who opined that the Veteran's tinnitus was not related to service, inaccurately characterized the Veteran's statements regarding the onset of his tinnitus. The examiner initially noted that the Veteran reported that he had tinnitus for 10 years or more, and then later in the opinion, the examiner noted that the Veteran reported that he had tinnitus for at least 10 years ago, more than 10 years post-separation. Tinnitus, unlike hearing loss, is a disorder that is readily observable by laypersons, is subjective in nature, and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, while the Veteran's service treatment records are negative for complaints of tinnitus, he is nevertheless competent to report a history of tinnitus that began in service. 38 C.F.R. § 3.159(a)(2). Therefore, the Board finds that the Veteran's competent and credible lay evidence is sufficient to support a claim for entitlement to service connection. Accordingly, the benefit-of-the-doubt doctrine is for application; the Board finds that the Veteran's tinnitus had its onset in service and has continued to the present day; and service connection for tinnitus is warranted. See 38 U.S.C. § 5107. . RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson, 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.