Citation Nr: 21003233 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-52 226 DATE: January 21, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for a tinnitus disability is granted. FINDINGS OF FACT 1. Resolving all doubts in favor of the Veteran, his bilateral hearing loss disability is etiologically related to his military service to include in-service noise exposure as a heavy weapons infantry man. 2. Resolving all doubts in favor of the Veteran, his tinnitus disability is etiologically related to in-service noise exposure as a heavy weapons infantry man. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for a tinnitus disability have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1962 to June 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). Certain chronic diseases are subject to presumptive service connection if it manifests to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Bilateral hearing loss disability The Veteran seeks service connection for his bilateral hearing loss disability. Specifically, he testified that as a heavy weapons infantryman he was exposed to loud noises while firing cannons inside of enclosed tanks and a Davy Crockett nuclear weapon. See September 2020 Board hearing. Generally, for purposes of applying the laws administered by the VA, impaired hearing will only be considered an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these 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 (2018). The Court in Hensley v. Brown has held that the threshold for normal hearing is from zero to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. 5 Vet. App. 155, 157 (1993). A review of the Veteran’s October 2016 VA examination reflects he had auditory thresholds of 40 decibel or greater for the frequencies of 500, 1000, 2000, and 4000 Hertz in the left and right ear. Moreover, his Maryland Speech Discrimination score was 46 percent for the right ear and 24 percent for the left ear. Based on the October 2016 VA examination, the Board finds that the Veteran’s audiogram meets the criteria under 38 C.F.R. § 3.385. Therefore, the Board finds that he has hearing loss for VA purposes. With regards to an in-service incurrence, the Board finds that the Veteran’s service treatment records (STRs) are negative for a diagnosis of bilateral hearing loss. His audiometric tests noted in a March 1962 entrance examination and May 1964 separation examination also do not reflect any hearing threshold shift. However, the Veteran testified that as a heavy weapons infantryman he was exposed to loud noise while working inside of tanks. He stated he was unable he first noticed a temporary inability to hear immediately after firing rounds while inside of an enclosed tank. He stated that he had advance training with tanks for two months and then was sent to Korea to work with a tank company for four to five months. He was later was assigned to a Davy Crockett nuclear weapon which he testified was very big and noisy every time it was fired. As his DD-214 Certificate of Release or Discharge further indicates he served as a heavy weapons infantryman, there is a high probability he was exposed to loud noise during service. Accordingly, the Board concludes that an in-service incurrence has been satisfied. With regards to whether there is a nexus between the Veteran’s bilateral hearing loss disability and service, the Board notes that there are competing medical opinions of record. In an October 2016 VA examination, the VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not caused by or a result of an event in military service. The VA examiner noted the Veteran had normal hearing bilaterally upon entrance and separation from the military service. The VA examiner stated there was no significant threshold shift noted at any frequency and that his service military records and STRs were silent for hearing loss complaints. In support of the VA medical opinion, the VA examiner referenced the Institute of Medicine study in 2005 indicating that there is insufficient evidence from longitudinal studies in laboratory animals or human to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime long after the cessation of that noise exposure. The VA examiner stated that while definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise-exposure, it was unlikely that such delayed effects occurred. Based on the audiograms, the VA examiner stated there was no evidence to conclude that the Veteran’s hearing loss was caused or was result of his military service to include noise exposure. In a November 2020 private medical opinion, a private audiologist opined that it was most likely that the Veteran’s hearing loss and tinnitus were related to his noise exposure while in the military. The private audiologist noted the Veteran was trained to fire cannons from armored tanks and was assigned to heavy weapons infantry. In support of the private opinion, the private audiologist referenced a noise hazard evaluation conducted by the US army Environment Hygiene Agency at the Aberdeen Proving Ground which determined that the maximum permissible level of any impact noise at the ear is 140dB. The USAACHPPM assessment of noise levels of common army equipment showed that the impulse noise level of the weapons used by the Veteran ranged from 153dB to 179dB which exceeded 140db. The noise hazard evaluation further showed that areas or operations were designated as hazardous noise when individuals were exposed to steady noise levels above 85dB, regardless of the length of exposure. The research further indicated that sound levels of tanks often exceeded 85dB and can reach levels of 117dB. As such, the private audiologist stated that acoustic trauma as described above, following routine exposure to tank and weapon noise without the use of hearing protection, would cause bilateral hearing loss and tinnitus. Upon consideration of these two medical opinions, the Board finds both the VA and private medical opinion to be of the same probative value. The Board acknowledge the Veteran’s representative’s contention that the October 2016 VA medical opinion was based on the 2005 IOM report which contains qualifying and contradictory findings regarding delayed-onset hearing loss as noted by the Court in McCray v. Wilkie, 31 Vet. App. 243 (2019). While the October 2016 VA medical opinion does rely, in part, on the 2005 IOM report as a basis for providing a negative opinion, the Board finds that does not render the opinion inadequate or diminish its probative value. The Board notes that the IOM report acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. However, the IOM report’s own finding that, based on the anatomical and physiological data available on the recovery process of noise exposure, it is unlikely that delayed hearing loss effects occur is probative. This statement tends to show that the limitation was considered, but the IOM was confident in the available data (anatomical and physiological) to make a conclusion utilizing a strongly worded term (“unlikely”). In this regard, the Board finds that the report retains some probative weight and should not be wholly disregarded. The Veteran’s November 2020 private medical opinion is also probative as the opinion is based on a review of the Veteran’s claims file and considers his credible lay reports of noise exposure and of experiencing a hearing loss in service. The private audiologist further supported her medical opinion by relying on relevant studies of the noise level of weapons fired by the Veteran in service. The Board has further considered the Veteran’s lay statements and finds his statements regarding in-service noise exposure due to training and firing rounds out of tanks and the Davy Crockett nuclear weapon to be credible. While he is not permitted to render an opinion as to the etiology of his current bilateral hearing loss disability, he is permitted to report that he had hearing problems during and since service. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). It is generally within the experience of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is competent evidence; that is, it is legally permissible. Given the positive nexus opinion of the private examiner, the negative nexus opinions of the VA examiner, and the Veteran’s competent and credible lay statements, the Board finds that the totality of the evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss is etiologically related to his in-service noise exposure. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In sum, resolving doubt in favor of the Veteran, the Board finds that the Veteran’s bilateral hearing loss disability is etiologically related to his military service to include in-service noise exposure. Accordingly, service connection for a bilateral hearing loss disability is granted. 2. Tinnitus disability The Veteran further seeks service connection for his tinnitus disability. He testified that he first experienced ringing in his ears after firing rounds out of a cannon inside of a tank. See September 2020 Board hearing. After that experience, he reported the tinnitus was intermittent. Id. Tinnitus has been variously defined. It is “a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane”). Butts v. Brown, 5 Vet. App. 532, 540 (1993). It is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v Brown, 9 Vet. App. 195, 196 (1996). It is a ringing, buzzing noise in the ears. Kelly v. Brown, 7 Vet. App. 471, 472 (1995). “Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin.” 59 Fed. Reg. 17,297 (April 12, 1994). The Board observes that in Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), the Court specifically held that tinnitus is a condition which is capable of lay observation. See also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Upon review of the pertinent evidence, the evidence reflects that he has a current diagnosis of bilateral tinnitus as shown in a November 2020 private audiogram. Regarding an in-service incurrence, the Board observes that his STRs do not reflect any complaints of tinnitus during service. As tinnitus is a disability that is capable of lay observation and there is no evidence that the Veteran’s lay statements describing the onset of his tinnitus are not credible, the Board concludes that an in-service incurrence has been satisfied. With regards to a nexus, the Veteran was provided with a VA examination in October 2016. However, the VA examiner noted that the Veteran denied experiencing tinnitus and reported there was no diagnosis as there was no pathology to render a diagnosis. No further medical opinion was rendered regarding the etiology of the Veteran’s tinnitus. However, as previously stated above, a November 2020 private audiologist opined that the Veteran’s bilateral hearing loss and tinnitus is most likely related to his military service. Upon discussion of the noise level of weapons used by the Veteran in service, the private audiologist concluded that his acoustic trauma, following routine exposure to tank and weapon noise without the use of hearing protection, would cause bilateral hearing loss and tinnitus. (Continued on the next page)   Accordingly, as tinnitus is a uniquely subjective disorder, the Board is satisfied with the evidence supporting a nexus between his tinnitus and service. As such, the Board will resolve all doubts in the Veteran’s favor and find that his recurrent tinnitus disability is etiologically related to his in-service noise exposure as a heavy weapons infantryman. Therefore, service connection for a recurrent tinnitus disability is granted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.