Citation Nr: 18148995 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-28 468 DATE: November 8, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his bilateral hearing loss is etiologically related to his period of active service. 2. Resolving all doubt in the Veteran’s favor, his tinnitus is etiologically related to his period of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1964 to January 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. After the June 2016 statement of the case and the August 2017 hearing, the Veteran submitted a private medical opinion in support of his appeal. In an August 2017 brief, the representative, on behalf of the Veteran, waived consideration of the private medical opinion by the AOJ. See 38 C.F.R. §§ 19.37, 20.1304. The Veteran is seeking service connection for tinnitus and bilateral hearing loss. The Veteran contends that while he was on active duty, he was exposed on a daily basis to loud ammunition, artillery and jet airplane engine noises. The Veteran was a Motion Picture Photographer and his primary duties required him to film gunnery (artillery and rocket) tests and fly in C-130 aircrafts filming air delivery system tests. He alleges that while aboard C-130 aircrafts the doors would be open while in flight exposing him to excessively harmful noise. Additionally, during test firings of artillery, the Veteran alleges that he would be approximately 100 feet from the muzzle of the gun. The Veteran contends that he was not given any hearing protection nor was he able to cover his ears while performing these tasks. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, to include tinnitus and sensorineural hearing loss, which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Id. Continuity of symptoms may be established if a claimant can demonstrate: (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service Connection for Bilateral Hearing Loss With respect to hearing loss, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The Board notes here that, based on knowledge of service audiometric practice, it is assumed that a Veteran's service department audiometric tests prior to January 1, 1967, were in ASA units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units, and conversion to ISO 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. The following audiometric tests are after ASA to ISO conversion. The Veteran’s January 1964 enlistment exam contained an audiological examination which indicated the following: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 5 “” “” LEFT 20 15 “” “” The examiner did not note any hearing loss and the Veteran’s physical profile (PULHES) report score, which reflects the results of a rating system used by the military to evaluate a servicemember’s physical health, contained a “1” in the hearing and ear category. The Veteran received a “1” in each of the six PULHES categories, indicating the highest level of fitness. The Veteran’s September 1964 examination for his Army Class III flight status contained an audiological examination which indicated the following: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 5 0 0 0 5 LEFT 5 0 0 20 35 The Veteran’s October 1966 separation examination showed the following audiometric results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 15 10 10 10 20 LEFT 15 10 10 25 45 He received a “2” for the hearing and ear category, but he was given a “1” in the other PULHES categories. The examiner assigned the Veteran a “B” on his PULHES report because of his hearing, indicating that the Veteran may have minor impairment under on or more PULHES factors which may disqualify him from certain critical military occupation specialties (MOS) but that there was no significant limitation. The examiner also noted that the Veteran had high frequency loss in his left ear. In an October 1998 private auditory examination, the Veteran was diagnosed with moderate to severe high frequency loss in his right ear and mild to severe mid-high to high frequency loss in his left ear. In a January 2012 VA examination, the Veteran was diagnosed with sensorineural hearing loss (in the frequency range of 500–4000 Hz) in the right and left ear. The VA examiner opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in the military. The examiner reasoned that the September 1964 examination indicated normal hearing in the right ear and high frequency hearing loss at 4000–6000 Hz in the left ear and that the October 1966 exit examination indicated normal hearing in the right ear and a stable high frequency hearing loss at 4000–6000 Hz in the left ear. The examiner concluded that there were no significant threshold shifts when comparing the two examinations. Lastly, the examiner found that the Veteran’s hearing loss existed prior to service and that it was not aggravated beyond normal progression during his military service. In February 2017, the Veteran was seen by a private provider for an audiologic assessment. The examiner concluded that the audiometry revealed asymmetrical sensorineural hearing loss. He explained that the Veteran’s right ear demonstrated hearing within normal limits falling at 2000 Hz to severe high frequency loss with a fair word recognition score while the left ear exhibited borderline normal hearing falling at 1500 Hz to a profound rising to severe loss with a severely depressed word recognition score. The examiner opined that the results were consistent with noise induced hearing loss and that the Veteran’s military medical records demonstrated that the onset of the noise induced hearing loss occurred at the time of service. In August 2017, the Veteran obtained a private opinion from Dr. W.K., who opined that the Veteran’s military job duties exposed him to excessive harmful noise resulting in acoustic trauma which has caused his current hearing loss. Dr. W.K. noted that a significant threshold shift is one that is greater than 5 decibels (dB) and that despite largely showing hearing within normal limits the Veteran’s service records show significant threshold shifts at frequencies of 2000, 4000, and 6000 Hz, which indicates high frequency hearing loss. Thus, Dr. W.K. reasoned that the post-service audiometric test results show that the Veteran’s high frequency hearing loss has been present since service and that it has gradually worsened over time. Lastly, Dr. W.K. explained that an individual’s awareness of the effects of hazardous noise exposure and acoustic trauma on hearing may be delayed considerably. For example, young adults with slight noise-induced high frequency hearing loss at discharge would not likely have much difficulty with communication and would not be aware of the effects of the acoustic trauma until they exhibit greater hearing loss as they age than young adults who were considered to have normal hearing at discharge. The evidence clearly demonstrates that the Veteran has a current diagnosis of bilateral hearing loss that comports with the VA’s definition under 38 C.F.R. § 3.385. Additionally, the Veteran’s MOS as a Motion Picture Photographer and his statements concerning his noise exposure during service without hearing protection are both competent and credible. The question that remains is whether the Veteran’s currently diagnosed bilateral hearing loss it etiologically related to his military service. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69–70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192–93 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In weighing the conflicting medical opinions of record, the Board has assigned greater probative weight to the private opinions provided by the February 2017 private audiologist and Dr. W.K., an otolaryngology (ear, nose and throat specialist). The private audiologist and Dr. W.K.’s opinions were based upon examination of the Veteran, a review of his military service record and post-service audiometric examinations, and supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The January 2012 VA examination, opined that there was no significant threshold shifts between the Veteran’s September 1964 examination and his October 1966 exit examination. However, Dr. W.K. concluded that that the two examinations represent a worsening hearing with a threshold shift of 10 dB in the right ear at frequencies of 1000, 2000 and 3000 Hz and 15dB at 4000 Hz as well as a threshold shift of 10dB in the left ear at frequencies of 1000, 2000 and 4000 Hz and a 5dB shift at 3000 Hz. Dr. W.K. supported this contention by citing a published article by The Health and Medicine Division of the National Academy of Sciences, Engineering and Medicine that stated that a hearing threshold shift that is greater than 5dB is considered to be clinically significant. Additionally, the VA examiner failed to acknowledge that the Veteran’s exit examination PULHES score changed to reflect hearing impairment and that high frequency loss was noted for the left ear. Based on a careful review of all of the subjective and clinical evidence, the Board finds that the evidence is at least in equipoise that the Veteran’s currently diagnosed bilateral sensorineural hearing loss is etiologically related to his in-service noise exposure. Therefore, resolving all reasonable doubt in favor of the Veteran, his service connection claim for bilateral hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Tinnitus The Veteran’s service treatment records (STRs) indicate that the Veteran did not have any complaints or symptoms associated with tinnitus during his time in the military. Additionally, his October 1966 separation examination contained no complaints or symptoms regarding tinnitus. In February 2012, the Veteran underwent a VA examination regarding his tinnitus. During the examination the Veteran reported that he has constant bilateral tinnitus. The VA examiner concluded that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. The examiner reasoned that the Veteran’s entrance and exit examinations indicated normal hearing in the right ear and high frequency loss at 4000–6000 Hz in the left ear. Furthermore, the examiner noted that there was no mention of tinnitus in the Veteran’s medical records. In February 2017, a private audiologist opined that the Veteran’s constant bilateral tinnitus is more likely than not related to his military service and hearing loss. The examiner stated that medical research confirms that exposure to noise associated with hearing loss is likely to also be associated with tinnitus and that hearing loss with greater than 25dB at one or more audiometric frequencies between 250 and 8000 Hz is associated with a higher prevalence of tinnitus. Thus, the examiner concluded that the Veteran’s reports of tinnitus were consistent with his exposure to excessive noise and acoustic trauma while in service. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” See Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). Because tinnitus is “subjective,” its existence is generally determined by whether or not the Veteran claims to experience it. 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). The Board finds that there is a link between the Veteran’s active service and his tinnitus and that the preponderance of the evidence supports a finding that the Veteran has had tinnitus since his separation from service. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support of a claim of service connection). As a Motion Picture Photographer, the Veteran was exposed to excessive harmful noise while aboard C-130 aircrafts and while filming the test firing of munition blasts. The Veteran testified that he has had tinnitus since his military service. He stated that he did not report the condition because he just “thought it was natural” and that “it went with age.” See Hearing Transcript. After the Veteran was discharged from the military he became a commercial pilot, where he was routinely given auditory tests as part of his flight physicals. On his October 1998 auditory physical, the examiner wrote a note that the Veteran does not notice any tinnitus. The rest of the flight physicals in the VA’s possession do not contain any complaints or symptoms of tinnitus. The Veteran testified that his flight physicals are silent as to his tinnitus because as a commercial pilot “you don’t offer anything extra” and since it was not affecting his ability to do his job he was not going to bring it up. See Hearing Transcript. In conclusion, based on the Veteran’s credible and competent testimony regarding onset, the Board finds that the evidence is at least in relative equipoise regarding whether the current tinnitus began during service. Accordingly, resolving any doubt in the Veteran’s favor, service connection for the Veteran’s tinnitus is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel