Citation Nr: A20007352 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190612-9972 DATE: April 30, 2020 ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss disability had onset in service. 2. Tinnitus did not onset in service and there is no credible and competent evidence linking current tinnitus disability to service, to include noise exposure therein. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 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 1968 to April 1970. The Board notes that the rating decision on appeal was issued May 2019. In June 2019, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a VA Form 10182 after receiving the statement of the case (SOC) that was issued in May 2019. 84 Fed. Reg. 138, 177 (Jan. 18, 2019); 38 C.F.R. § 19.2(d). The Veteran requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). In the May 2019 SOC, the AOJ found that new and material evidence was submitted to warrant reopening the claims for service connection for bilateral hearing loss and tinnitus. The AOJ also readjudicated the issues on the merits. These are essentially favorable findings that the Board will not disturb. The new and material evidence issues regarding have been recharacterized to reflect the applicable evidentiary standard. 38 C.F.R. §§ 3.2501(a)(1), 19.2). SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385. 1. Entitlement to service connection for a bilateral hearing loss disability. The AOJ found that the Veteran has a current diagnosis of a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. The question in this case is whether a causal relationship or nexus exists between the Veteran’s bilateral hearing loss disability and his active service. The Veteran’s DD Form 214 shows a military occupational specialty was11B20, infantry. The Veteran asserts his hearing loss disability is related to his history of military noise exposure from rifles, machine guns, explosions, and 90-millimeter rifles. Noise exposure is conceded. Service treatment records show the Veteran was not found to have a hearing loss disability for VA compensation purposes during service or at discharge. In August 2018, the Veteran submitted a report from private audiological evaluation. The report shows the Veteran indicated he was exposed to excessive noise from rifles, pistols, machine guns, grenades, and large shell artillery on tanks. No nexus opinion was provided regarding hearing loss. In November 2018, the Veteran’s private physician K.P. noted that the Veteran had in-service noise from rifles, machine guns, 90 mm cannons, grenade launchers, pistols, etc. Dr. K. P. indicated that the Veteran started having decreased hearing soon after firing these weapons in the military. Dr. K.P. opined that due to being in the military and use of the mentioned weapons, to a reasonable degree of medical certainty and more likely than not, the Veteran’s hearing loss can be attributed to his service in the military. The Board finds this opinion to be flawed, and of lessened probative weight, because it is not supported by a fully-explained clinical rationale and does not appear to consider the Veteran’s post-service occupational noise exposure. The Board also notes that there is a prior unfavorable VA medical opinion in the record from an August 2014 audiology examination. That VA examiner opined that the Veteran’s current bilateral hearing loss disability is not caused by or a result of military service, including noise exposure. The examiner’s rationale was based on the Institute of Medicine (IOM) study titled Noise and Military Service: Implications for Hearing Loss and Tinnitus. The examiner did not, however, explain the reliance on this particular study to the extent that it contains unaddressed contradictory findings regarding delayed-onset hearing loss. For this reason, the Board affords it no probative weight. See McCray v. Wilkie, 31 Vet. App. 243 (2019). In short, the Veteran has a current hearing loss disability for VA compensation purposes and noise exposure in service. As to the medical nexus opinion, Dr. K.P.’s opinion is of somewhat diminished probative value for the reasons explained. However, there is no equally or more probative competent medical nexus opinion. Hence, the Board will resolve all reasonable doubt in the Veteran’s favor on the matter of causal nexus. Service connection for a bilateral hearing loss disability is warranted. 2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus began during active service due to in-service noise exposure and has continued since. He reported a history of military noise exposure from rifles, machine guns, explosions, and 90mm rifles. See August 2014 VA examination report. The AOJ found that the Veteran has a current diagnosis of tinnitus. The Board initially notes that there is no indication of any complaints of tinnitus during the Veteran’s active service. The induction and separation examinations did not reveal complaints of tinnitus or a hearing problem. On the Veteran’s November 1969 Report of Medical History at discharge, he specifically denied having experienced ringing in his ears or any ear problem. In a prior June 2014 VA Form 21-526EZ, the Veteran reported noise trauma from small arms and recoilless rifles in the Army infantry and stated he has had ringing in his both ears after the noise trauma in service. During an August 2014 VA audiology examination, the Veteran self-reported his tinnitus had onset in the past several years. The question that remains is whether there is a nexus between the in-service noise exposure and his current tinnitus. As noted, the record includes a prior unfavorable VA medical opinion in the record from the August 2014 audiology examination. The examiner’s opinion on tinnitus is flawed for the reasons previously discussed in this decision and will not be relied upon herein. In August 2018, the Veteran submitted a private audiological evaluation report, but a nexus opinion was not provided. In the November 2018 opinion, Dr. K.P. opined that the Veteran also suffers from intermittent tinnitus relates to noise exposure. Unlike the hearing loss, Dr. K.P. did not specifically link the current tinnitus to military noise exposure. In short, there is an absence of competent medical evidence linking current tinnitus to noise exposure in service. To the extent the Veteran asserts his tinnitus onset in service and continued thereafter, his statements do not warrant a grant of service connection. The Veteran is competent to report the onset and continuity of his tinnitus symptoms, as tinnitus is a disease that is capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, his report of tinnitus since noise exposure in service is not credible. The Veteran denied ringing in his ears at service discharge in November 1969 as reflected on his Report of Medica History form and informed the VA examiner in 2014 that his tinnitus was of recent onset. These statements contradict any current report that tinnitus has been continuous since service discharge. Service connection for tinnitus is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi 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.