Citation Nr: 18153862 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-55 866 DATE: November 28, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, his currently diagnosed bilateral hearing loss is related to his in-service noise exposure. 2. Resolving all doubt in favor of the Veteran, his currently diagnosed tinnitus had its onset during his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 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. §§ 1101, 1112, 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 April 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran submitted additional evidence in support of his claim. See 38 U.S.C. § 7105(e)(1). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that high frequency sensorineural hearing loss is an organic disease of the nervous system. Tinnitus is also deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury suffered while he was in military service. See Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds the competent evidence of record confirms that the Veteran has current diagnoses of bilateral hearing loss for VA purposes and tinnitus as evidenced by an June 2016 VA examination. The Board further notes that the Veteran is competent to describe his in-service noise exposure, and the Board finds his statements and testimony in such regard to be credible it is consistent with the nature and circumstances of his military service as an avionics instrument systems specialist as demonstrated by his DD 214. Specifically, at his June 2016 VA examination, the Veteran reported that he served as an avionics instrument specialist. He stated that his military noise exposure included extensive aircraft noise and firing range, and hearing protection was reportedly worn. After serving in the military, the Veteran worked in several positions where hearing protection was required. Thus, the remaining question is whether the Veteran’s current bilateral ear hearing loss and tinnitus are related to his acknowledged in-service noise exposure. In this regard, the Veteran’s service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to bilateral hearing loss or tinnitus. Additionally, upon his April 1969 entrance examination, audiological testing revealed the following pure tone thresholds in decibels (in this regard, if one were to convert such findings from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI) units, it would be less favorable to the Veteran’s appeal; hence, such are reported in their original form): HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 LEFT 0 0 0 0 At the time of the Veteran’s March 1972 separation examination, audiological testing revealed the following pure tone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 10 LEFT 10 10 10 10 10 In June 2016, the Veteran was afforded a VA examination so as to determine the nature and etiology of his bilateral hearing loss and tinnitus. At such time, the examiner opined that such are not caused by or a result of an event in military service. As rationale, she explained that the Veteran’s STRs showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. Furthermore, there was no record of complaints or treatment of the claimed conditions in the Veteran’s service records. She further noted that the Institute of Medicine (IOM) (2006) stated that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that, based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was “unlikely”. Based on the objective evidence (audiograms), there was no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of his military service, including his noise exposure. As pertinent to tinnitus, the examiner noted that the Veteran had an onset of tinnitus in his early 20s. However, she noted that there was no evidence in the record that the claimed tinnitus was causally related to noise injury. Since there was no evidence that hearing loss or significant threshold changes occurred during military service, the examiner concluded that the Veteran’s claimed tinnitus was not caused by noise exposure. She further stated that, in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure would be speculative. The record also contains a December 2016 private opinion from J.B., an audiologist, who indicated that he considered the Veteran’s audiometric data, case history, medical record review, and peer reviewed research showing a correlation between exposure to dangerous noise levels and progressive sensorineural hearing loss and tinnitus in rendering his opinion. In this regard, J.B. opined that the Veteran’s hearing loss and tinnitus are at least as likely as not caused by his in-service acoustic exposure. As rationale, he explained that the Veteran worked as an avionics instrument systems specialist and his responsibilities were to inspect, install, repair, operate, troubleshoot, overhaul, and modify avionic instruments, avionic instrument systems and components of F101 and T-33A aircraft. J.B. noted the Veteran’s reports that he was also in close proximity to the aircraft when the engines were on as well as when they took off and landed. He further explained that a person could be exposed to noise levels up to 85 dBA for 8 hours without experiencing hearing loss or damage to the auditory system. However, the aircraft that the Veteran worked on were capable of producing up to 125 dBA from 200 feet and up to 145 dBA from 50 feet away the source, which means that, even with standard issued hearing protection that provides a 30 dB NR (noise rating), the allowable exposure time to these noise levels is 51 seconds from 100 feet away and 16 seconds from 42 feet away. This would mean that one launch would exceed the maximum allowable exposure time for a 24-hour period. J.B. further stated that the Federal Aviation Administration (FAA) indicated that normal operation is defined as 60 launches and 60 recoveries within a 24-hour period. Based on these noise levels and the amount of time that the Veteran was exposed to such noise levels, even if he was wearing hearing protection, it would not have been adequate to protect his auditory system from noise induced damage. Moreover, J.B. observed that the damage can present itself as either a temporary threshold shift or a permanent threshold shift. Such change, whether it be temporary or permanent, is caused by damage to different parts of the auditory system. He noted that hair cell damage in the cochlea can be seen immediately following exposure to dangerous levels of noise. However, because the hair cells act as an amplifier by responding to soft sounds, hair cell loss can potentially present as a mild hearing loss. Moreover, medium to loud sounds are able to stimulate the basilar membrane of the cochlea and therefore a person’s supra-threshold hearing can appear to be unaffected. However, J.B. cited The Journal of Neuroscience, and indicated that recent research has shown that, while hair cell damage can be immediate, the cell bodies of the cochlear afferent neurons that have connections to these hair cells show damage that is delayed by months or even years. Furthermore, standard audiometric behavioral threshold data could be insufficient to measure the underlying neuronal degeneration that causes progressive hearing loss. The article further indicated that, for many years, the belief was that damage to auditory neuronal fibers was reversible. However, present research shows that damage caused by noise to cochlear nerve terminals is irreversible in adults and the recovery of nerve bundle and synapses are minimal. Moreover, the progressive damage caused to the auditory system by dangerous noise levels can have widespread effects on a person’s communication abilities. With a decrease in spiral ganglion activity and function, a person’s ability to effectively communicate and understand in the presence of background noise can be hindered. Ultimately, based on the foregoing, J.B. concluded that, during the Veteran’s time in the military, he was exposed to dangerous noise levels and his hearing loss and tinnitus are at least as likely as not caused by his in-service acoustic exposure. After a careful review of the record, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss and tinnitus are related to his in-service noise exposure. In this regard, both the June 2016 VA examiner and J.B. are competent medical professionals, and considered the totality of the evidence as well as current accepted medical principles in rendering their opinions. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that his bilateral hearing loss and tinnitus are related to his acknowledged in-service noise exposure. Consequently, service connection for such disorders is warranted. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel