Citation Nr: 20021223 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-16 702A DATE: March 25, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran currently has bilateral hearing loss. 2. The Veteran's hearing loss is related to service. 3. The Veteran currently has tinnitus. 4. The Veteran's tinnitus is related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from September 1969 to September 1973. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing is of record. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 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). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, bilateral sensorineural hearing loss (organic disease of the nervous system) and tinnitus are considered chronic diseases for the purpose of applying 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claims for service connection for hearing loss and tinnitus. For purposes of applying VA laws, 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. VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 15 (1993). The Veteran maintains that his current hearing loss and tinnitus are related to his period of service. He has testified that he was a weapons specialist for fighter and bomber aircraft and that his entire time in the Air Force was spent on the flight line and his main job was to load conventional and nuclear weapons on fighter and bomber aircraft. He stated that he worked 14 days on, one day off, 12 hours a day during the war effort and that he spent his entire time on the flight line with the aircraft, loading and downloading munitions. He also reported that he experienced a number of rocket attacks in DaNang which was commonly referred to as Rocket City. He indicated that he was in close proximity to a number of those attacks and was exposed to that noise level without any protection of any kind at that time. The Veteran indicated that he was not aware of what tinnitus was and that his hearing was affected by the noise exposure. He remembered experiencing a white noise problem early on but ignored it, thinking for the most part it would probably just go away, but it never did. Service treatment records reveal that audiological testing performed in October 1970 revealed decibel level readings of 15, 5, 10, 15, and 15 in the right ear and 25, 15, 15, 20, and 15 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Audiological testing performed in January 1973 revealed decibel level readings of 10, 5, 0, 15, and 15 in the right ear and 10, 5, 5, 15, and 5 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Audiological testing performed at the July 1979 Air Force National Guard enlistment examination revealed decibel level readings of 10, 0, 5, 5, and 5 in the right ear and 5, 5, 0, 10, and 10 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. On his July 1979 report of medical history, the Veteran checked the “no” box when asked if he had hearing loss. In support of his claim, the Veteran submitted a January 2016 statement from his private audiologist, L. G., Au.D. She noted that the Veteran was seen in her office in November 2015. She observed that the Veteran served in the United States Air Force and was a Vietnam War Veteran. She indicated that since his time in the service he had experienced a white-noise tinnitus. During his evaluation, the Veteran was noted to have a bilateral mild-to-moderate hearing loss. She stated that his constant tinnitus and observations of difficulty hearing in background noise were consistent with this type of hearing loss. At the time of a July 2016 VA examination, the Veteran was found to have bilateral sensorineural hearing loss. Audiological testing revealed decibel level readings of 15, 15, 30, 50, and 50 in the right ear and 15, 20, 30, 45, and 45 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 96 percent in the right ear and 88 percent in the left ear. The examiner stated that the Veteran’s file had been reviewed. She noted that based on the Veteran’s report and documents in the C-file (DD 214 and/or other documents in the C-file) the Veteran was exposed to hazardous noise levels while in service. She stated that hazardous noise exposure while in service was conceded. She indicated that the Veteran’s report of noise exposure and subjective report of hearing loss while inservice were taken into consideration when rendering the opinion. She observed that electronic hearing testing conducted at enlistment, during service, and at discharge showed the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. Therefore, the evidence of record showed the Veteran did not have hearing injury while in service. She noted that the thresholds measured while in service were within normal measurement variability. The examiner stated she was familiar with the Hensley v Brown decision in 1993. She indicated that all available evidence was considered when rendering the opinion on hearing loss and/or tinnitus. She stated that while many factors were involved, one critical issue for determining hearing loss/tinnitus related to noise exposure while inservice was "did the veteran have a significant threshold shift beyond normal measurement variability/normal progression while in service?” She noted that evidence in this case clearly and convincingly showed the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. She indicated that it was also important to know behavioral measurements always involved some degree of variability and that such differences did not constitute injuries. She stated that determination of significant threshold shift beyond normal measurement variability caused by or a result of noise exposure while in service was made by the expert in area (Audiologist) on a case by case basis after a careful review of all evidence. She noted that the evidence in this case clearly and convincingly showed the Veteran did not have hearing injury while in service. Therefore, the evidence of record clearly and convincingly rebutted, if so stated, the Veteran’s subjective report of hearing loss while in service. The examiner stated that she conceded noise exposure in service, however, the evidence showed there was no noise injury while in service. This was not at all contradictory. Concerns about the noise hazards associated with military service and questions about the relationship between noise exposure and hearing loss or tinnitus led Congress to direct VA to contract with the National Academies for a study of these issues. The committee convened by the Institute of Medicine of the National Academies to conduct this study was charged with reviewing the following for the period from World War II to the present: (1) the available data on hearing loss that could be expected among members of the armed forces; (2) sources of hazardous noise exposure during military service; (3) the levels of noise exposure necessary to cause hearing loss or tinnitus; (4) the course of hearing loss following noise exposure, including whether onset can be delayed; (5) risk factors for noise-induced hearing loss and tinnitus; and (6) compliance by the military services with requirements for audiometric testing and the adequacy of the services' hearing conservation programs to protect the hearing of service members. The Institute of Medicine (IOM) clearly indicated in its landmark study of noise injury in military service that it is difficult, if not impossible, to predict who will be noise exposed and if they are so exposed who will suffer noise injury. It was important to know not everyone who was exposed to hazardous noise would suffer noise injury, and that delayed onset hearing loss due to previous noise exposure was unlikely to occur. Therefore, if the evidence showed there had been no significant threshold shift, beyond normal measurement variability, while in service (no hearing injury while in service) any hearing loss occurring following service was less likely as not caused by or a result of noise exposure while in service. Many factors could contribute to hearing loss and/or tinnitus following service such as recreational, occupational, environmental noise exposure, aging, disease, medications, environmental pollution, genetic/hereditary factors, smoking, etc. Audiograms provided objective evidence of noise injury. In the absence of objective audiometric evidence of noise injury while in service, an affirmative opinion that the Veteran suffered some latent undiagnosed noise injury was utter speculation and directly contradicted the objective evidence of record. The examiner stated that based on electronic hearing testing conducted at enlistment, during service, and at discharge, it was her opinion the Veteran did not have hearing injury (injury to hearing sensitivity) while in service. Delayed onset hearing loss and tinnitus due to noise exposure were unlikely to occur. Therefore, it was her opinion the Veteran's hearing loss (if any) was less likely as not caused by or a result of noise exposure while inservice. In an August 2016, an additional VA examiner indicated that based on electronic hearing testing conducted at enlistment, during service, and at discharge, it was his opinion that the Veteran did not have hearing injury (injury to hearing sensitivity) while in service. The examiner stated that delayed onset hearing loss and tinnitus due to noise exposure were unlikely to occur. He noted that in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure could not be assumed to exist. Therefore, it was his opinion the Veteran's reported tinnitus (if veteran reports tinnitus) was less likely as not caused by or a result of noise exposure while in service. Although the VA examiner found that it was less likely that the Veteran's hearing loss was related to his period of service, she did note the acoustic trauma to which the Veteran was exposed in service. While it is true that objective testing was within normal limits at separation, this does not account for the demonstrated functional impairment reported in lay evidence, including statements and testimony from the Veteran, which are bolstered by his MOS. The Court's ruling in Hensley does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The lack of evidence showing the appellant had hearing loss during service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. As such, the Board finds the opinion of limited probative value. Moreover, the appellant has submitted a separate opinion noting reports of tinnitus and hearing loss since service. Given the appellant's current hearing loss; his credible testimony of symptoms of hearing loss in service; his in-service military occupational specialty; his in-service noise exposure, and the statements from his private audiologist as to continuity, reasonable doubt must be resolved in favor of the appellant. As such, service connection is warranted for bilateral hearing loss disability. The Board also finds that tinnitus was incurred in and is attributable to service. The appellant has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. While the appellant's service treatment records do not note any findings of tinnitus, the appellant, by his own statements, has indicated that he had tinnitus in service. The appellant has reported experiencing recurrent tinnitus symptomatology since service and, despite some inconsistencies, the Board finds his lay accounts to be credible. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, as the evidence is in relative equipoise, the Board finds that the appellant experienced recurrent tinnitus symptomatology. As such, the evidence demonstrates credible evidence of conceded in-service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and that the appellant currently has tinnitus. For these reasons, and resolving reasonable doubt in the appellant's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.