Citation Nr: 22018737 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-35 420 DATE: March 30, 2022 ORDER Entitlement to service connection for a right ear hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for chronic upper respiratory infections is remanded. Entitlement to service connection for a left ear hearing loss disability is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's current right ear hearing loss disability is etiologically related to his first period of active service. 2. The Veteran's current tinnitus is etiologically related to his service-connected right ear hearing loss disability. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a right ear hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from May 1982 to January 1991 and from February 2005 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. VA medical records relevant to the Veteran's claims were added to the claims file after the RO's adjudication in the May 2017 Statement of the Case (SOC). See VA treatment records received August 2021. Consequently, in January 2022, the Board sent a letter to the Veteran (copying his representative) which informed him that additional evidence had been added to the claims file and that he had a right to have the Agency of Original Jurisdiction (AOJ) review the evidence, or he could elect to waive AOJ consideration. In February 2022 Correspondence, the Veteran requested that the case be remanded to the AOJ for review of the additional evidence. To afford the Veteran due process, the Board will remand the issues of service connection for a left ear hearing loss disability and chronic upper respiratory infections back to the AOJ for review. See 38 C.F.R. §§ 19.31, 19.37. However, given the full grant of the benefits on appeal for the claims for service connection for a right ear hearing loss disability and tinnitus, the Board finds that no prejudice to the Veteran could result from the adjudication of those claims herein. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Tinnitus and sensorineural hearing loss are considered by VA to be organic diseases of the nervous system, which are "chronic diseases" listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. 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 a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive 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. Id. For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. Additionally, precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). A lay person is competent to report on the onset and reoccurrence of current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against the claim, the claim is denied. 1. Entitlement to service connection for a right ear hearing loss disability The Veteran asserts he is entitled to service connection for a right ear hearing loss disability. As an initial matter, the Board finds that the Veteran is currently diagnosed with a right ear hearing loss disability for VA purposes. See VA examination reports dated January 2014, February 2014, and April 2017. Therefore, a current disability is established. Next, the Board concedes exposure to loud military noise due to the Veteran's military occupational specialties (MOS) during his first period of active service in the Navy, which both have a "high" probability of noise exposure according to the Department of Defense's Duty MOS Noise Exposure Listing. Accordingly, an in-service event is established. Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran's current right ear hearing loss disability and his active service. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current right ear hearing loss disability is etiologically related to his first period of active service. At the September 2021 Board hearing and at an October 2015 hearing before a Decision Review Officer (DRO), the Veteran testified that he noticed his hearing started to get worse during his first period of active service in the Navy. The Veteran is competent to report the onset of observable symptoms of difficulty hearing, and the Board has no reason to doubt his credibility. Therefore, the Board affords great probative value to the Veteran's statements regarding the onset of his hearing difficulties during his first period of active service. In January 2014, the Veteran was provided a VA examination to determine the nature and likely etiology of his claimed hearing loss disability. After audiological testing and a review of the claims file, the January 2014 VA examiner opined that the Veteran's right ear hearing loss disability was at least as likely as not caused by or a result of an event in military service. The January 2014 VA examiner provided the following rationale: "...the DD 214 confirmed a military occupation of System Organizational Maintenance Technician/Automatic Flight Control Systems Technician and Aircraft Electrical and Environmental Craftsman. He received the M-16 Sharpshooter Badge during his military service. Review of the medical records shows that the veteran entered the service with normal hearing bilaterally per VA guidelines in 1982 and exhibited a threshold shift in the right ear in 2000. Therefore, due to the timing of symptom onset (1995), the threshold shift in the right ear and the type and duration of noise that veteran was exposed to in the military, it is at least as likely as not that the acoustic trauma from prolonged and excessive levels of aircraft engine noise and weapon fire caused the hearing loss in the right ear." The Board finds the January 2014 VA medical opinion to be adequate and highly probative given the examiner's consideration of the Veteran's medical history and detailed rationale. In February 2014, the Veteran was provided an additional VA examination to assess his claimed hearing loss disability. After audiological testing and a review of the claims file, the February 2014 VA examiner opined that the Veteran's right ear hearing loss disability was less likely than not caused by or a result of an event in military service. In pertinent part, the February 2014 VA examiner provided the following rationale: "The veteran's DD214 reports that he was in the service from 05/1982 until 03/1986 and then from 03/1986 until 01/1991. He was a flight control systems technician. The report of medical exam upon enlistment 01/1982 shows normal hearing in both ears as does the report of medical exam from 07/1985. The report of medical exam upon separation 12/1990 continues to show normal hearing with a 30dB response at 6000Hz in the left ear and a 35dB response at 6000Hz right ear (this was 30dB upon enlistment). Hearing conservation data also shows similar results...In reviewing the available medical records, there is no notable change in hearing while on active duty. There was a change in hearing during the reserves. Therefore, in my opinion, it is less likely than not that the veteran's hearing loss is due to noise incurred while on active duty." The Board finds the February 2014 VA medical opinion to be adequate and highly probative as to the question of whether the Veteran's current right ear hearing loss disability was etiologically related to his first period of active service, given the VA examiner's consideration of the Veteran's medical history and detailed rationale. In April 2017, the Veteran was provided an additional VA examination to assess his claimed hearing loss disability. After audiological testing and a review of the claims file, the April 2017 VA examiner only provided an opinion as to whether the Veteran's right ear hearing loss disability, which predated his second period of active service beginning in February 2005, was aggravated beyond its normal progression during his second period of active service. As the April 2017 VA medical opinion does not address whether the hearing loss was related to the Veteran's first period of active service, the Board affords it little to no probative value. As there is an approximate balance of positive and negative evidence regarding the issue of whether the Veteran's current right ear hearing loss disability is etiologically related to his first period of active service, the Board resolves all reasonable doubt in favor of the Veteran. For these reasons, the Board finds that service connection is warranted for a right ear hearing loss disability. The appeal is therefore granted. 2. Entitlement to service connection for tinnitus The Veteran asserts he is entitled to service connection for tinnitus. As an initial matter, the Board finds that the Veteran has a current disability of tinnitus, which is capable of lay observation and diagnosis. See VA examination reports dated January 2014, February 2014, and April 2017. Next, as discussed above, the Veteran is now service connected for a right ear hearing loss disability. Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran's service-connected right ear hearing loss disability and his current tinnitus. When asked to opine as to the etiology of the Veteran's current tinnitus, the January 2014, February 2014, and April 2017 VA examiners all opined that his tinnitus was at least as likely as not a symptom associated with his diagnosis of clinical hearing loss, explaining that tinnitus is known to be a symptom associated with hearing loss. The Board finds the January 2014, February 2014, and April 2017 VA medical opinions as to secondary causation to be adequate and highly probative given the VA examiners' expertise as audiologists and their consideration of the Veteran's medical history. For these reasons, the Board finds that service connection for tinnitus is warranted on a secondary basis. The appeal is therefore granted. REASONS FOR REMAND 1. Entitlement to service connection for chronic upper respiratory infections is remanded. The Veteran asserts he is entitled to service connection for chronic upper respiratory infections. As discussed previously, the Board finds that remand is necessary so that the AOJ may review the additional VA medical records that were associated with the claims file following the May 2017 SOC. 2. Entitlement to service connection for a left ear hearing loss disability is remanded. The Veteran asserts he is entitled to service connection for a left ear hearing loss disability. As discussed previously, the Board finds that remand is necessary so that the AOJ may review the additional VA medical records that were associated with the claims file following the May 2017 SOC. Additionally, the Board finds that the Veteran should be afforded an updated VA examination to assess the current severity of his left ear hearing loss. The Veteran was last provided a VA audiological examination in April 2017, and the VA examiner determined that the Veteran had normal hearing in his left ear. More recently, after audiological testing conducted in June 2017, the Veteran's VA treating audiologist determined that he had mild sensorineural hearing loss at 6000 hertz in the left ear. Given the suggestion of possible worsening, the Board finds that re-examination is necessary. See Palczewski v. Nicholson, 21 Vet. App. 174, 180 (2007); 38 C.F.R. § 3.327 (a). If hearing loss for VA purposes is found to exist in the left ear, an etiology opinion should be obtained. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran an additional VA examination, if possible, to determine the nature and etiology of his claimed left ear hearing loss disability. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to a VA audiologist for a thorough review of the record, possible telephone/virtual interview of the Veteran, and medical opinion. After a thorough review of the claims file and examination of the Veteran (if possible), and if hearing loss for VA purposes is found to exist in the left ear, the examiner is asked to provide an opinion as to whether the Veteran's left ear hearing loss disability at least as likely as not (at least an approximate balance of positive and negative evidence) had its onset during active service or is otherwise related to it. 2. Review the evidence received since the May 2017 SOC, to include VA treatment records received August 2021. 3. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.