Citation Nr: 21003000 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-06 966 DATE: January 19, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s bilateral hearing loss disability is etiologically related to noise exposure in service. 2. The evidence is in equipoise as to whether the Veteran’s tinnitus manifested while in service and has continued to the present. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1965 to September 1968. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated September 2017, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO denied service connection for hearing loss and tinnitus. The Veteran timely appealed. A Board video hearing was held in September 2020. The hearing transcript has been associated with the Veteran’s file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Certain chronic diseases, including tinnitus and sensorineural hearing loss, 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. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Exposure to hazardous noise in service Relevant to both issues, the Veteran contends that he was exposed to hazardous noise in service. In his October 2017 notice of disagreement (NOD), the Veteran wrote, “I was a mechanic on CH-47 Chinook helicopters my whole time in service and in Vietnam. I was constantly around loud noises and aircraft running and flying. I was never in my life around any louder noises, except in the Army. I feel this is what caused my tinnitus and hearing loss.” During his September 2020 hearing, he testified that his main profession while he was in service involved helicopter maintenance. He reported, “We were in what’s call[ed] field maintenance, actually, fueling the helicopters. And we did preventative maintenance more or less, changed filters, changed the oil. But we did fly quite a bit on test flights to make sure everything was okay. And I was also a crew chief for a while, which every time the helicopter took off, I was on it. So there’s quite a bit of noise.” He noted that he was not issued hearing protection. See Hearing Transcript dated September 2020. The Board finds these reports from the Veteran competent and credible. Therefore, the Board finds that the Veteran has satisfied the second prong of service connection for both issues: evidence of an in-service disease or injury. 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran claims entitlement to service connection for a bilateral hearing loss disability. Following a thorough review of the Veteran’s medical records, the Board finds that he is entitled to an award of service connection. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. The Veteran was provided a VA audiological examination in August 2017, which showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 60 55 LEFT 25 25 50 65 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 80 percent in the left ear. These values meet the criteria for a bilateral hearing loss disability under 38 C.F.R. § 3.385. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. 38 U.S.C. § 1110; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Turning next to evidence of a causal relationship between the present disability and noise during service, the Board finds the weight of the evidence is in equipoise. The Veteran has asserted that he began experiencing symptoms of hearing loss while in service. The audiological evidence in the Veteran’s service treatment records (STRs) show that the Veteran’s hearing was within normal limits throughout the duration of his service. Additionally, when asked if he had or had ever experienced “hearing loss” in reports of medical history in the Veteran’s STRs, he answered “no.” The Veteran did not complain of or receive treatment for a bilateral hearing loss disability during his time in service. Medical treatment records ranging from February 2008 to July 2017 document that the Veteran’s hearing status was noted as good or fair. With regards to whether a causal relationship exists between the Veteran’s current bilateral hearing loss disability and his active duty service, a VA examiner provided an audiological examination in August 2017. The examiner determined that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service. He explained, Veteran’s hearing thresholds at time of entrance and separation were within normal limits. According to the American College of Occupational Medicine Noise and Hearing and Conservation Committee, ‘a noise induced hearing will not progress once it is stopped.’ Therefore, it is my opinion that the Veteran’s current hearing loss is less likely than not related to military noise exposure/acoustic trauma. The Board finds the opinion of the August 2017 VA examiner to be probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has stated that he believes that his current hearing loss is due to noise exposure in service. Statements from the Veteran and his wife are consistent with each other and with what the Veteran has continued to report about his bilateral hearing loss disability. In his September 2020 hearing, the Veteran was asked, “When you were in service, did you start to notice that you were having trouble hearing?” He responded, “I think I did…it seemed like things weren’t as plain as they were before.” See Hearing Transcript dated September 2020. The Veteran’s wife testified that she knew the Veteran while he was in service. They were married after he separated from service. She noted the hearing loss problem had progressively become worse through the years. She stated, “You have to really get his attention if you’re trying to talk to him so, you know, to make sure he hears you. Or you have to raise your voice…You have to make sure you got his attention before you try to have conversation with him.” They began dating in 1968, the year he separated from service. She noted that his hearing loss issues were pretty evident from the beginning of their dating relationship. See Hearing Transcript dated September 2020. On review, the record contains both positive and negative evidence regarding nexus. That is, the VA provided a negative opinion in August 2017 and the Veteran and his wife provided competent and credible lay statements that his bilateral hearing loss symptoms began within one year of separation from service during the September 2020 hearing. The Board finds that the competent, credible, probative evidence both for and against the claim are in equipoise. Therefore, the Board resolves doubt in the Veteran’s favor and finds that service connection for the Veteran’s current bilateral hearing loss disability is warranted. 2. Entitlement to service connection for tinnitus The Veteran also claims entitlement to service connection for tinnitus. Following a thorough review of the Veteran’s medical records, the Board finds that he is entitled to an award of service connection. The Veteran is competent to describe observable symptoms such as ringing in the ears as these are observable symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In his September 2020 hearing, the Veteran described his tinnitus as “more like bells are ringing.” He testified that it did not happen all the time. “Just most of the time when I lay down in bed it sometimes, some nights it’ll hit me. I have a hard time going to sleep.” The Veteran has satisfied the first prong of service connection, the existence of a current disability. Turning next to evidence of a causal relationship between the present disability and noise during service, the Board finds the weight of the medical evidence supports a nexus. In reaching this determination, the Board finds that the Veteran has competently and credibly reported that his tinnitus began while in service and has continued to the present. The Veteran had a VA examination in August 2017 in which the VA examiner determined that, “The Veteran has a diagnosis of clinical hearing loss, and his or her tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss.” The examiner did not, however, provide a nexus opinion for the Veteran’s tinnitus. The Board finds that the August 2017 VA examination is, therefore, not probative as to nexus. A review of the Veteran’s August 2017 VA examination showed that the Veteran reported a positive history for recurrent tinnitus. He reported tinnitus 15 to 20 years prior to the examination, circa between 1997 and 2002. During his September 2020 hearing, the Veteran testified that he began experiencing tinnitus while in service. The Veteran’s wife also stated that she had heard him talk about his tinnitus for a really long time. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s tinnitus began in service and has continued to the present. Resolving doubt in his favor, the Veteran’s competent and credible reports that his tinnitus began while in service and has continued to the present show continuity of symptomatology. Thus, the Board finds that service connection for tinnitus has been established. 38 C.F.R. § 3.303(b). LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.