Citation Nr: 18145852 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-14 702A DATE: October 30, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is approximately evenly balanced as to whether the Veteran’s bilateral hearing loss disability is the result of in-service acoustic trauma. 2. The evidence is approximately evenly balanced as to whether the Veteran’s tinnitus is the result of in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 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 from October 1973 to July 1976. In April 2017 he testified at a Travel Board hearing before the undersigned Veteran’s law judge. Service Connection Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship – or “nexus” – between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when the Veteran's speech recognition scores on the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran was examined by an audiologist in June 2013. According to the examiner’s report, the Veteran’s auditory threshold test results and speech recognition scores indicated the presence of a hearing loss disability in both ears. According to the examiner, the Veteran also reported recurrent tinnitus. With respect to tinnitus, a layperson is qualified to diagnose a disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the evidence satisfies the “current disability” requirement for both claims. Acoustic trauma due to combat or other loud noise has been accepted as satisfying the in-service disease or injury element of claims for disability compensation. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (sound of mortars firing); Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (jet aircraft noise). Based on the Veteran’s credible testimony describing his exposure to the loud noises of jet aircraft in service, the Board finds that the Veteran suffered an in-service injury. Thus, with respect to both hearing loss and tinnitus, the Veteran’s eligibility for benefits depends on the third requirement of a claim for service connection – whether the current disability is related to an in-service disease, injury, or event. The Agency of Original Jurisdiction (AOJ) tried unsuccessfully to obtain an adequate medical opinion on this issue. The June 2013 examining audiologist reported that she could not provide the requested opinion because no hearing-related records were available in the claims file. The audiologist provided a separate report, with what appears to be a favorable nexus opinion, in October 2013. But this finding was undermined by a subsequent addendum report indicating, once again, that the examiner could not review relevant records. In January 2014, the AOJ asked the same audiologist to provide new opinions on the issues of whether the Veteran’s current hearing loss began during military service and whether a pre-existing hearing loss disability was aggravated by in-service noise exposure. The examiner’s subsequent unfavorable addendum opinion is inadequate because the AOJ’s instructions to the examiner are based on an apparently inaccurate premise. Specifically, the service treatment records indicate that, although the Veteran’s auditory threshold in the right ear at 500 Hertz was somewhat elevated, the entrance examination test results did not satisfy the criteria for hearing loss disability under 38 C.F.R. § 3.385. Accordingly, in this case, the Veteran’s eligibility for benefits does not depend on the aggravation of a pre-existing hearing loss disability. Because the AOJ’s attempts to obtain an adequate medical opinion were unsuccessful, the Board asked an expert otolaryngologist affiliated with the Veterans Health Administration (VHA) to review the records and to provide a new opinion. In October 2018, the otolaryngologist provided her report to the Board. According to the VHA otolaryngologist, it was at least as likely as not that the current bilateral hearing loss disability and tinnitus were caused by in-service noise exposure. The expert explained her opinion, noting the Veteran’s duties working near loud jet aircraft during active duty service. The expert also considered the potential effects of noise associated with his post-service employment as a truck driver. She explained that, “Truck drivers are exposed to loud noises as well, but on the order of 80-100 decibels which is significantly lower than being around aircraft. Therefore, it is less likely that his hearing loss and tinnitus were caused by noise damage after being in the military.” On the issue of whether the Veteran’s current hearing loss disability and tinnitus are related to active duty service, the Board finds that the most persuasive available evidence is the October 2018 opinion of the VHA expert. Consistent with the expert’s opinion, the Board further finds that it is at least as likely as not that tinnitus and a bilateral hearing loss disability are related to in-service noise exposure. By law, the doubt resulting from this relative equipoise in the evidence is resolved in The Veteran's favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ . . ., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding . . . benefits.”). Thus, the Board will grant service connection a bilateral hearing loss disability and for tinnitus. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel