Citation Nr: 21002368 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-23 126 DATE: January 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss had its onset in service. 2. The Veteran’s tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1966 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board notes the Veteran’s assertion that his active duty dates are not correctly annotated on his DD Form 214. See November 2020 VA Form 21-4138; December 2020 Board Hearing Transcript at 3. As the exact dates of the Veteran’s active duty service has no direct bearing on the decision, it will not be further discussed. However, should the Veteran wish to correct his DD Form 214, he is encouraged to speak with his Veterans Service Officer. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. The Veteran asserts that his hearing loss and tinnitus are related to acoustic trauma sustained during active duty service as an aviation technician radar specialist without mandatory use of hearing protection. See October 2018 VA Form 21-4138; May 2019 Notice of Disagreement (NOD); July 2019 Statement; May 2020 VA Form 9; November 2020 VA Form 21-4138; December 2020 Board Hearing Transcript at 3-5. The Board agrees. Here, the Veteran has been diagnosed with bilateral hearing loss for VA purposes and tinnitus, and he is competent to report the presence of tinnitus. See January 2019 VA examination report. His service treatment records (STRs) do not identify any complaints, treatment for, or diagnosis of hearing loss or tinnitus, and the Veteran concedes as much, noting he figured hearing problems were just “part of the job” and did not want to be seen as a complainer. See November 2020 VA Form 21-4138; December 2020 Board Hearing Transcript at 4. However, the Board finds that the Veteran sustained acoustic trauma in service, based on his military occupation specialty as well as his competent and credible reports of routine exposure to aircraft noise as a result of working on the flight line without hearing protection, which is consistent with his duties in service. See 38 U.S.C. § 1154(a). Thus, elements one and two of service connection are met. Regarding the last element, nexus, the record contains both unfavorable and favorable evidence. Against the claim is the opinion of the January 2019 VA audiological examiner, who opined that it was less likely than not that the Veteran’s current bilateral hearing loss and tinnitus were due to routine exposure to noise from flight lines during active duty service. The examiner reasoned that there was no significant permanent shift in hearing during service, and that there was no complaint and/or treatment for hearing decrease during service or at separation. The examiner concluded by stating that although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss based on military service is not conceded. In favor of the claim is the July 2019 statement from the Veteran’s private treating physician, Dr. M.L., who opined that based on the Veteran’s MOS, it was possible that the hearing damage was due to a lack of hearing protection during those years, noting the Veteran’s exposure to aircraft noise on numerous occasions that left him with ringing in his ears. Dr. M. L. also noted that the Veteran’s career following service was in regular office work and there was no exposure to loud noises. Also, in favor of the claim is the November 2020 statement from a private otolaryngologist Dr. B. L., who opined that, his professional opinion in his practice of treating the Veteran’s hearing loss and other ear-related issues, that based on the audiograms and Veteran’s history, it was more likely than not that at minimum, a large portion of his hearing loss was due to his MOS working on the flight lines during active duty without hearing protection. The Board finds the January 2019 VA audiologist’s unfavorable opinion inadequate, as it is premised solely on the lack of hearing loss at service separation and fails to address the possibility of delayed-onset hearing loss and relevant lay statements of record. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Critically, when audiometric test results at a Veteran’s separation from service do not meet the regulatory requirements for establishing a “disability” at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. Here, the Veteran has done exactly that. Moreover, he is competent to state the date of onset of his tinnitus, and the Board finds him credible. The Board notes that while the Veteran stated prior to the Board hearing his tinnitus only began 5 or 10 years ago, he clarified later in his Board testimony that it began during active duty and has continued to the present. Furthermore, although somewhat couched in speculation, the Board finds the opinions in favor of the claim probative, as they consider the Veteran’s military service, medical history, lay statements, and post-service employment. Accordingly, the private July 2019 and November 2020 medical opinions are the only probative evidence of record as to the etiology of the Veteran’s bilateral hearing loss, and those same opinions and the Veteran’s statements constitute the only probative evidence addressing the etiology of tinnitus. As all the probative evidence of record weighs in favor of the claim, the criteria for service connection for bilateral hearing loss and tinnitus are met and the appeal is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, Associate 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.