Citation Nr: 20058024 Decision Date: 09/02/20 Archive Date: 09/02/20 DOCKET NO. 16-12 560A DATE: September 2, 2020 ORDER Service connection for tinnitus is granted. Service connection for a bilateral hearing loss disability is granted. FINDINGS OF FACT 1. The Veteran’s tinnitus, as likely as not, had its onset in service. 2. The Veteran’s bilateral hearing loss disability cannot be satisfactorily disassociated from his tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1965 to June 1974, including in the Republic of Vietnam. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral hearing loss and bilateral tinnitus The Veteran’s notice of disagreement (NOD) for the tinnitus claim was received in April 2015, and the NOD for the hearing loss claim was received in March 2016. The RO issued the statement of the case (SOC) for the tinnitus claim in January 2016, and the Veteran’s VA Form 9, substantive appeal for the tinnitus claim was received in March 2016. In January 2020, the RO issued an SOC for the hearing loss claim, and the Veteran’s VA Form 9 was received in February 2020. In June 2020, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. Historically, when interpreting audiometric data from STRs, it is important to note that Service Departments changed from using American Standards Association (ASA) standards, to using International Standards Organization – American National Standards Institute (ISO-ANSI) standards when providing audiograms beginning at some point between approximately January 1, 1967 and December 31, 1970, however, the conversion date was not consistent between all branches of the Armed Forces. Accordingly, if the standard used is not clearly indicated on the Service Department audiogram(s), it is presumed that prior to January 1, 1967 the ASA standard was used. For in-service audiograms conducted between January 1, 1967 and December 31, 1970, where the standard used is unclear, the data under both ASA and ISO-ANSI standards will be considered. For in-service audiograms conducted after December 31, 1970, it is presumed that the ISO-ANSI standard was used. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Such conversion to ISO units requires the following amounts be added to the recorded ASA audiological results: 15 dB at 500 Hz, 10 dB at 1000 Hz, 10 dB at 2000 Hz, 10 dB at 3000 Hz, and 5 dB at 4000 Hz. 1. Entitlement to service connection for tinnitus 2. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that his tinnitus and his bilateral hearing loss disabilities are related to in-service noise exposure. See, e.g. June 2020 Board hearing transcript, pp. 3-6. Specifically, the Veteran testified that he was regularly exposed to noise-producing machinery, equipment and aircraft during his active service but was not provided with ear protection. See Statement in Support of Claim dated May 2015. He testified that he did not experience tinnitus before service; rather, he began experiencing ringing in his ears when he returned from Vietnam and at the time of separation from service, and that the condition has “continued, unabated,” to the present. He testified that while he was stationed at Randolph Air Force Base, he conducted substantial field work which required spending more than half of his time conducting inventory checks at facilities throughout the base, putting him in close proximity to noisy equipment, generators, and aircraft. He was then stationed at Cam Rahn Air Force Base (Cam Rahn) in Vietnam, where he reportedly performed similar duties and was exposed to similar hazardous noise including from C-130 Hercules aircraft and F-4 Phantoms which flew into the base “almost continuously.” He tesrified that he spent significant time near flight lines, aprons, and operating aircraft, and as a result was exposed to hazardous noise on a routine basis. Initially, the Veteran has current disabilities of (i) bilateral tinnitus and (ii) bilateral hearing loss for VA purposes. See, e.g. VA audiology clinic note dated June 2014; VA examination report Disability Benefits Questionnaire (DBQ) dated March 2015. As so, the issue in this case is whether the Veteran’s hearing loss and/or tinnitus are related to service. Service personnel records show that the Veteran was stationed with the 12th Civil Engineering Squadron while at Cam Ranh, and that his reporting official for the period from September 1966 to July 1967 was an Air Force Captain, C.W. See AF Form 909 Performance Report dated April 1968. The Veteran’s DD Form 214 and service personnel records reflect a military occupational specialty (MOS) of Cost Management Analysis Specialist/Real Estate Cost Management Analysis Specialist, noted as analogous to a civilian occupation of accounting clerk. See DD Form 214; see also AF Form 7, Airman Military Record. The Veteran’s duties included civil engineering cost accounting. Service Treatment Records (STRs) show that the Veteran’s hearing was tested throughout service. Regarding tinnitus, the Veteran reports that he did not suffer any symptoms of tinnitus when he entered service in 1965, and STRs are silent as to any complaints, treatment, or diagnosis of tinnitus during service. See May 2015 Statement in Support of Claim; see also STRs dated August 1965 through June 1974. An audiogram from August 1965, prior to the Veteran’s entrance to service, revealed the following puretone thresholds (in dB). As the audiogram report does not indicate whether testing was conducted according to ISO/ANSI standards, the result of converting to ISO/ANSI units is included in parenthesis: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -5 (5) -5 (5) --- -5(0) LEFT -5 (10) -5 (5) -5 (5) --- -5 (0) An audiogram taken in August 1967 revealed the following puretone thresholds (in dB). As the audiogram report does not indicate whether testing was conducted according to ISO/ANSI standards, the result of converting to ISO/ANSI units is included in parenthesis: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) -5 (5) -10 (5) 0 (10) -5(0) LEFT 0 (15) -10 (0) 0 (10) 5(15) -5 (0) An April 1970 audiogram conducted according to ISO standards revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 20 20 15 LEFT 20 15 15 15 15 A July 1973 audiogram conducted according to ISO standards revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 15 5 LEFT 20 10 15 20 15 A July 1974 separation audiogram, conducted according to ISO standards, revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 20 15 20 LEFT 20 10 15 20 15 The Veteran complained of hearing loss and tinnitus at a June 2014 VA new patient appointment, and he was assessed with hearing loss and tinnitus. See VA physician note June 2014. The Veteran attended a VA audiologic evaluation in July 2014, and an audiogram from that evaluation revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 50 55 55 LEFT 15 20 45 55 60 The treating physician noted mild to severe sensorineural hearing loss from 1500 to 8000 Hz bilaterally. The Veteran reported that his bilateral tinnitus had its onset in service, and that he first noticed the tinnitus as a “high-pitched cricket” type sound. The Veteran denied any routine exposure to hazardous noise after service, and, he reportedly worked as a bank employee ever since he left service. The Veteran had a VA hearing loss and tinnitus examination in March 2015. The Veteran reported that his tinnitus began in January 1970. Speech discrimination testing using the Maryland CNC word list revealed 96 percent in each ear, and audiometric testing revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 40 55 60 LEFT 15 20 45 55 65 The March 2015 VA examiner diagnosed sensorineural hearing loss, bilateral. The examiner reviewed the Veteran’s claims file, and, opined that the hearing loss is less likely than not related to service. In so finding, the examiner cited hearing thresholds at entrance and separation from service which were within normal limits. The examiner cited a finding of the American College of Occupational Medicine Noise and Hearing Conservation Committee that “a noise induced hearing loss will not progress once it is stopped.” The examiner also opined that it is less likely than not that the tinnitus is caused by or related to in-service noise exposure. The examiner’s opinion was based on the absence of any medical records showing complaints or treatment of tinnitus or hearing loss during service, or at any time prior to the examination. Specifically, the examiner cited “a lack of evidence in the C-File of any complaints of tinnitus or hearing loss during service;” and, noted that the gap in time between service and the examination was “significant” in light of the absence of any audiology treatment in those intervening years. The Veteran submitted a letter to VA in February 2020, in which he reported that his tinnitus began while he was in service, in approximately 1969, and that he has never been tested for tinnitus. Further, that he believes his hearing loss has progressed over time, but began shortly after separation from active service. Regarding the 2015 VA examination, the Veteran indicated that he was never asked about his military experience, including the jobs that he performed while stationed in Vietnam, or why he believed his hearing loss and tinnitus were related to service. He reported that he contacted the Bexar County Veterans Service office, which informed him that his in-service specialty (cost and real property specialist) no longer exists, but that “similar duties within a civil engineering unit in any branch of service would have a high probability of hazardous noise exposure.” C.W., the Veteran’s supervisor at Cam Rahn, submitted a letter which was associated with the Veteran’s claims file in March 2020. In the letter, C.W. reported that the Veteran’s assignments included establishing an accounting system to track all fixed assets and to track expenditures throughout the base, including related to acquisition, repair, maintenance and construction; and, to conduct first-hand inspections of such equipment, structures, roadways and pavements. C.W. reported that the Veteran’s role required conducting surveys throughout the base, including at or near runways, taxiways, aprons, and near generators, compressors and related flight support equipment and machinery. C.W. reported that he believes the Veteran was exposed to high levels of aircraft and equipment noise, and was not given hearing protection during service. At his June 2020 Board hearing, the Veteran reported that he spent much of his time at Cam Ranh conducting inventory tasks across the base, and often near the flight lines. He reported that he took pictures of the jets that would fly in and out of the base, and he submitted several images of aircraft including the C-130 and the F-4 Phantom. The Veteran acknowledged and confirmed the information set out in C.W.’s letter, including to confirm that he was often near the flight line, aprons, and taxiways since construction was often underway and such projects required his services. Regarding the tinnitus, the Veteran reported that he first experienced a cricket-like sound within one-to-two years of returning from Vietnam, in approximately 1970. He also reported that he did not immediately realize, upon returning from Vietnam, that there was hearing loss; however, he noticed trouble differentiating certain voices depending on the pitch and the volume, beginning around the time of discharge in 1974. Regarding in-service noise exposure, the service personnel records, the Veteran’s lay statements and Board hearing testimony, and the letter from C.W. all confirm that while the Veteran was stationed at Cam Ranh in Vietnam, his MOS required that he perform accounting/inventory duties throughout the base. Moreover, the Veteran and C.W. both acknowledge that, while the MOS does not suggest a high probability of noise exposure, the Veteran’s day-to-day duties routinely required that he travel within close proximity to loud mechanical equipment, flight lines and aprons, and that he was not given any hearing protection. As the Veteran’s assertions as to in-service duties are consistent with service personnel records, there is no reason to doubt the Veteran’s credibility as to his in-service noise exposure and lack of available hearing protection. Moreover, his assertions are supported by his former supervisor, C.W. As to a nexus, the record contains a single negative medical opinion as to each issue. Regarding the tinnitus, the March 2015 examiner’s negative nexus opinion cites the absence of any complaints of tinnitus or hearing loss in-service or at any time prior to that examination. However, the opinion ignored (i) the Veteran’s report, at the examination, that the tinnitus began in 1970, and (ii) the Veteran’s report in July 2014 that his tinnitus had its onset in service. See July 2014 VA audiology clinic notes. In sum, while the examiner correctly notes that the Veteran did not complain of tinnitus during service and that there was a substantial gap in time until the Veteran’s treatment records show that he complained of tinnitus, the examiner’s opinion does not address the Veteran’s statements that he first noticed the tinnitus during, and/or shortly after discharge from, service. Though the record does not show that the Veteran is competent to opine as to a nexus between the in-service noise exposure and tinnitus, he is certainly compete to report the onset of his tinnitus, because the symptom of tinnitus; i.e. ringing in the ears, is readily observable by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the March 2015 examiner’s opinion did not address the Veteran’s lay statements as to in-service onset of the tinnitus, and did not provide any explanation for why his assertions were not considered in opining against a nexus. On the other hand, the Veteran currently suffers from tinnitus, and has provided consistent and credible testimony that his tinnitus has been continuous since service; and, that he was exposed to loud noise during service, but not after service. Resolving doubt in the Veteran’s favor, the evidence is in a relative equipoise, and the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, service connection for tinnitus is warranted. As noted above, the Veteran similarly asserts that his bilateral hearing loss disability is related to the in-service noise exposure. To that end, the March 2015 examiner’s opinion cites the entrance (August 1965) and separation (July 1974) audiograms as showing hearing thresholds within normal limits. Along with the absence of any complaints of “tinnitus or hearing loss” during service, and the gap between service and the examination, the examiner opined against a link between in-service noise exposure and the hearing loss. However, the STRs reflect that even after converting the results of the August 1965 entrance examination, comparison with the July 1974 separation examination reflects positive threshold shifts, specifically (a shift of 10 dB or greater) at 500 Hz in the left ear; at 2000 Hz bilaterally; and at 4000 Hz bilaterally. Additionally, the July 1974 audiogram reflects thresholds of 20 dB in the right ear, at 2000 Hz and 4000 Hz, and the left ear at 500 Hz and 3000 Hz, which suggests that there was borderline hearing loss incurred during service, even if it did not rise to the level of a disability for VA purposes under 38 C.F.R. § 3.385. The VA examiner neither addressed the Veteran’s lay statements as to the onset of hearing loss nor the in-service threshold shift during service. Rather, the examiner’s rationale for finding against the claim focused on one study showing that “a noise induced hearing loss will not progress once it is stopped;” and, the absence of any in-service complaints of hearing loss and the absence of any post-service treatment for hearing loss for many years following service. Notably, however, the lack of treatment does not, in and of itself, equate to a lack of disability, particularly when, as here, the Veteran first noticed hearing loss and tinnitus during service or shortly thereafter. Moreover, while it appears that the examiner was attempting to opine that a noise-induced hearing loss will not progress once [the noise] is stopped, this is not entirely clear from the way the opinion was worded as noted above. While medical treatment, or the lack thereof may be relevant, the lack of documented treatment in service cannot serve as the sole basis for a negative opinion. Accordingly, the rationale for the VA opinion is inadequate because, and in contrast to the cited study, the Veteran did report progression of hearing loss and tinnitus after the excessive noise stopped; and, the examiner failed to consider the Veteran’s competent and credible lay statements, focusing instead on a lack of treatment in the intervening years since service. A VA opinion that is unfavorable simply because of a lack of documented treatment is not adequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Though the opinion does not carry much probative weight as to whether the hearing loss began during service, the examiner’s short rationale provides a basis for assessing whether the hearing loss is related to the (now) service-connected tinnitus. The examiner suggested—albeit not directly—that the Veteran’s hearing loss is related to the tinnitus. Specifically, the examiner’s note that the absence of any complaints of “tinnitus or hearing loss” during service shows that the tinnitus did not begin during service suggests that evidence of either hearing loss or tinnitus during service would tend to show that the tinnitus began during service. Moreover, as the opinion suggests that hearing loss during service would bear on whether the tinnitus is related to service—specifically, in-service noise exposure— the findings from the examination tend to show that the Veteran’s hearing loss cannot be satisfactorily disassociated from his service-connected tinnitus. (Continued on the next page)   In light of the foregoing, the evidence is at least evenly balanced as to whether the Veteran’s hearing loss and tinnitus began during service. The Veteran’s assertions as to the onset of the observable symptoms of hearing loss and tinnitus are competent and credible. Thus, with resolution of any doubt in favor of the Veteran, service connection for hearing loss and tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Buchanan v. Nicholson, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.