Citation Nr: 22018304 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-49 980A DATE: March 28, 2022 ORDER Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The most probative evidence is against finding that the Veteran's currently diagnosed hearing loss was incurred in or caused by his service. 2. Resolving all reasonable doubt in favor of the Veteran, his tinnitus onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1965 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a October 2015 decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in July 2020 so that the Veteran could be afforded a new examination for his hearing loss and tinnitus. That examination has been completed; therefore, the Board will now decide this case based on the evidence of record. Service Connection Generally, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred or aggravated in the line of duty during active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 1. Entitlement to service connection for hearing loss 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 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory 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 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In Hensley, the Court also indicated 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, or even during the one-year presumptive period following service for sensorineural hearing loss, if there is sufficient evidence demonstrating a relationship between the Veteran's service and his current hearing loss disability, as opposed to other ("intercurrent") causes. Here, the record on appeal shows the Veteran has a current diagnosis of hearing loss and that his hearing loss is severe enough to be considered a ratable disability for VA compensation purposes meaning satisfies the threshold minimum requirements of § 3.385. He has auditory thresholds of 40 decibels or greater in the relevant frequencies in the left ear. See VA Examination, August 2020. In addition, VA concedes in-service noise exposure and consequent injury (i.e., acoustic trauma) based on his stated experience firing weapons without hearing protection while working on a repair ship that was essentially in his words a "floating machine shop" with all the noise hazards of any machine shop. Therefore, resolution of this claim turns on whether the currently diagnosed hearing loss disability is the result of the conceded noise exposure in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Unfortunately, based on the most probative (meaning most competent and credible) evidence in the file, the Board concludes that there is not this required correlation ("nexus"). The Veteran was afforded a VA compensation examination in August 2020. At that time, the examiner ultimately disassociated the Veteran's hearing loss from the acoustic trauma in service. In discussing the underlying basis or rationale for the unfavorable opinion, the examiner explained that the Veteran suffered from mixed hearing loss in his left ear. The examiner explained that mixed hearing loss is not typically caused by acoustic trauma but is rather consistent with presbycusis (age-related hearing loss). In addition, the examiner cited the lack of indications that the Veteran's hearing loss began during or shortly after his service. Most of the probative value of a medical opinion comes from its underlying reasoning or explanatory rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). So, according to the holding in Neives-Rodriguez, a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The VA examiner's medical opinion meets this standard, and there is no equally, certainly not more probative opinion to the contrary in fact, there is none coming to a different conclusion. Therefore, the VA examiner's opinion is uncontroverted. The VA examiner found it especially significant that the service medical records (SMRs) (which also are often referred to as service treatment records (STRs)) are devoid of indication of hearing loss. And while this, alone, is not dispositive of whether the Veteran had hearing loss during his service, it is nonetheless probative evidence suggesting he did not particularly when, as here, substantiated by objective data, notably, the results of his hearing evaluations in service. In cases involving combat, VA is prohibited from drawing a negative inference from silence in the STRs. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Conversely, in cases where this inference is not prohibited [i.e., non-combat scenarios], or even for a combat Veteran where the injury is not alleged to have been sustained in combat, the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service [or where the injury claimed is not alleged to have occurred in combat], the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), is distinguishable; the lack of documentation is service records must be weighed against the Veteran's statements.). Buchanan had held that lay evidence is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as treatment records (STRs, etc.). In this circumstance, where a claimed injury, disease or event is not alleged to have occurred during combat or the Veteran did not serve in combat, the Board must make two preliminary findings in order to rely on this negative inference (see Kahana): (a) First, the Board must find that the STRs appear to be complete, at least in relevant part. If the STRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence. (b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred. In making this determination, the Board may be required to consider the limits of its own competence on medical issues. So, it is true the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, as mentioned there are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Buchanan, supra. The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). Here, there is no suggestion, much less indication, that the Veteran's STRs (SMRs) are incomplete. Indeed, to the contrary, as mentioned they even contain relevant audiometric data in the way of the results of his entry hearing evaluation as well a clinical evaluation at separation. If he had had hearing loss during service, including notably at the time of those evaluations, it would have been detected especially since those tests were a means of specifically determining whether he had any hearing impairment. Those examinations confirmed that he did not, and the VA examiner has explained why the absence of any such indication during the Veteran's service is reason to now disassociate the present-day hearing loss from his time in service. And, to reiterate, absent any countervailing evidence, the claim must be denied. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). There also is no suggestion of sensorineural hearing loss to a compensable degree within a year of the Veteran's discharge from service, to in turn warrant presuming it was incurred during his service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For these reasons and bases, the evidence is against this claim, so there is no reasonable doubt to resolve in the Veteran's favor, meaning this claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for tinnitus The Veteran contends that he suffers from tinnitus owing to his service. As previously noted, acoustic injury in-service has been conceded based upon the Veteran's statements regarding firearm use without hearing protection and the nature of his work on a repair ship. He also credibly asserted in his December 2015 notice of disagreement that his tinnitus began in-service and that he has experienced it consistently since then. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). For this reason, the Board finds that the Veteran is competent to report experiencing ringing in his ears, in other words that he has tinnitus. Moreover, as noise exposure and consequent injury (acoustic trauma) during his service has been conceded, the Board finds his competent statements regarding his tinnitus also are credible and, therefore, ultimately probative. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). (continued on next page) The Board acknowledges the opinion of the August 2020 VA examiner that the Veteran's tinnitus was less likely than not caused by his service. But the Veteran also has competently and credibly reported that he began experiencing tinnitus in service and that it has persisted since. Accordingly, after resolving all reasonable doubt concerning this in his favor, service connection for tinnitus is warranted. 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.