Citation Nr: 20006472 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 15-32 433 DATE: January 29, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss is related to acoustic trauma during active military service 2. The evidence is evenly balanced as to whether the Veteran’s tinnitus had its onset during active military service. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to June 1967. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. In October 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. Service Connection Establishing service connection generally requires evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a), which include sensorineural hearing loss and tinnitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he currently has bilateral hearing loss that is related to acoustic trauma during military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran’s current bilateral hearing loss disability is related to acoustic trauma during active military service. See 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In assessing the Veteran’s service connection claim for hearing loss, there must first be a determination as to whether the Veteran has a current hearing loss disability under VA regulations. Hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). An October 2019 private treatment record reveals that the auditory thresholds were greater than 40 dB in at least one of the required frequencies, bilaterally. The private audiologist determined that the Veteran had bilateral sensorineural hearing loss. Thus, the evidence of record establishes that the Veteran currently has a bilateral hearing loss disability under VA regulations. In this case, the Veteran’s June 1963 enlistment examination reveals that his hearing was 15/15 on whispered test. The Veteran’s ears were evaluated as normal and in the physical profile section his hearing and ears were assigned the numerical designation of “1” indicating that his ears were at a high level of fitness and the veteran was medically fit for any military assignment. There is no evidence that the Veteran claimed of or sought treatment for symptoms of hearing loss during active military service. The Veteran’s separation examination to include audiogram was conducted in May 1967. The Board notes that prior to November 1967, the service department reported audiometric test results under the American Standard Associates (ASA) scale. The Department of Defense adopted the International Standards Organization (ISO) scale in November 1967. In July 1966, VA adopted the International Standard Organization (ISO) standard, which is the standard applied in 38 C.F.R. § 3.385. Thus, to compare the threshold hearing levels to later examinations, the ASA units must be converted to ISO units. Audiogram results (after converting the results from ASA to ISO) reveals decibel (dB) levels of 20 dB at 500 Hz, bilaterally. However, the threshold levels were not in excess of 20 dB at any of the relevant frequencies in the May 1967 separation examination, indicating that the Veteran did not have diagnosis of hearing loss during active military service. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss). Nonetheless, the evidence shows that the Veteran was exposed to loud noise during active military service. Specifically, the Veteran asserts that he worked as an aircraft mechanic and crew chief during service. His DD Form 214 shows that his military occupational specialty (MOS) was jet aircraft mechanic. Exposure to loud noise would be consistent with the circumstance of his service. See 38 U.S.C. § 1154(a). Thus, the Board finds that the Veteran experienced acoustic trauma during active military service. With respect to the issue of whether the Veteran’s current bilateral hearing loss disability is related to the Veteran’s active military service, the claims file contains conflicting medical opinions. In this regard, a December 2014 VA examiner determined that the Veteran’s bilateral hearing less disability is not at least as likely as not caused by or a result of an event in military service. The examiner explained that the induction evaluation in June 1963 revealed whispered and spoken voice test of 15 out of 15. The separation evaluation dated in May 1967 revealed normal hearing sensitivity. The examiner noted that per research, noise inducted hearing loss occurs t or near the incident(s) an individual is exposed to excessive noise. Hence it is less likely than not that the Veteran’s current hearing loss is a result of military noise exposure. The Board finds the December 2014 VA medical opinion is of low probative value with respect to providing a negative nexus to active military service. In this regard, the audiologists noted that the Veteran’s hearing loss at separation was within normal limits and did not mention converting the audiogram results from ASA units to ISO units. Furthermore, the examiner did not address the Veteran’s credible lay statements that he experienced hearing loss in service with continuous symptoms since service. In contrast, an October 2019 medical opinion from a private ear, nose, and throat physician provided the opinion that the Veteran’s current bilateral hearing loss disability is directly related to his service and is more likely than not a result from his noise exposure in the service. The physician explained that noise exposure is a known cause of sensorineural hearing loss. The physician noted that the Veteran was a jet engine service mechanic and supervisor and had direct exposure to jet engine noise. Thus, the physician concluded that the Veteran had extreme amount of noise exposure while in the military. He explained that this type of injury is additive Although it appears that the private physician did not have a copy of the Veteran’s claims file or reviewed his service treatment records, the medical opinion was based on accurate medical history provided by the Veteran that he was exposed to hazardous noise as a jet engine mechanic. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (indicating the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran) and Coburn v. Nicholson, 19 Vet. App. 427 (2006) (reliance on a veteran’s statements renders a medical report not credible only if the Board rejects the statements of the veteran as lacking credibility). After a careful review of the evidence to include the aforementioned medical opinions, the Board finds no reason to accord more weight to the negative medical opinion over the positive medical opinion. Thus, the record contains an approximate balance of positive and negative evidence regarding the issue of whether the Veteran’s current bilateral hearing loss is related to active military service. As such, the Board resolves any reasonable doubt in favor of the Veteran. Accordingly, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is related to acoustic trauma during active military service. In this regard, he asserts that he first noticed tinnitus during service and that bilateral tinnitus has been present and recurrent since that time. See December 2014 VA examination and October 2019 Hearing Transcript. The Board concludes that the Veteran has a current disability of tinnitus that began during active military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A review of the Veteran’s service treatment records reveals no complaints of tinnitus or symptoms of tinnitus during active military service. The Veteran’s May 1967 separation examination does not document a diagnosis of tinnitus or the Veteran reporting symptoms of tinnitus. Nonetheless, as noted above, the evidence shows that the Veteran was exposed to loud noise during active military service. Specifically, the Veteran asserts that he worked as an aircraft mechanic and crew chief during service. His DD Form 214 shows that his MOS was jet aircraft mechanic. Exposure to loud noise would be consistent with the circumstance of his service. See 38 U.S.C. § 1154(a). Thus, the Board finds that the Veteran experienced acoustic trauma during active military service. With respect to the issue of whether the Veteran’s tinnitus began in service or is otherwise related to active military service, the Veteran contends that he first noticed tinnitus during service that has continued to the present since that time. The Veteran is competent to report the onset and persistent nature of his tinnitus symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (holding that particularly with respect to claims for tinnitus, a veteran is competent to present evidence of a diagnosis and continuous symptoms). The Veteran has consistently reported throughout the appeal period that he has experienced recurrent tinnitus since active military service. Thus, there is no reason to doubt the Veteran’s credibility with regard to his lay statements as to onset of tinnitus in service, and continuity of symptomatology since service. With respect to the issue of whether the Veteran’s current tinnitus is caused by or related to active military service to include acoustic trauma, the claims file contains a negative medical opinion. In this regard, the December 2014 VA examiner provided the medical opinion that the Veteran’s tinnitus is at least as likely as not a symptom of his bilateral hearing loss as tinnitus is known to be a symptom associated with hearing loss. The examiner explained that the Veteran’s hearing loss is less likely than not a result of military noise exposure and his tinnitus is most likely a symptom of his hearing loss. Hence it is less likely than not that the Veteran’s tinnitus is a result of his tenure in military. The Veteran’s tinnitus is considered a chronic disease under 38 C.F.R. § 3.309 (a) as an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Thus, the second and third elements of service connection are demonstrated through the credible evidence of continuity of symptoms of tinnitus. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). Given the evidence of record shows acoustic trauma in service, the Veteran’s credible assertions of the onset of tinnitus in service with continuity of symptomatology to the present, and a medical opinion asserting that the Veteran’s tinnitus is a symptom of his service-connected bilateral hearing loss, the evidence is at least evenly balanced in showing that the current Veteran’s current tinnitus had its onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.