Citation Nr: 21061442 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 20-18 568 DATE: October 4, 2021 ORDER Service connection for bilateral tinnitus is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran's bilateral tinnitus is etiologically related to his active service. 2. Affording the Veteran the benefit of the doubt, his bilateral hearing loss is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1958 to January 1962. In July 2021, he testified at a hearing before the undersigned Veterans Law Judge (VLJ). Service Connection Bilateral Tinnitus and Bilateral Hearing Loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection can also be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes tinnitus and hearing loss, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for bilateral tinnitus and bilateral hearing loss. A May 2017 VA audiological examination report includes diagnoses of bilateral tinnitus and bilateral hearing loss. As such, the current disability prongs of these claims are met, and the remaining issue is whether these current disabilities can be related to any in-service event or whether they onset therein. At the July 2021 hearing, the Veteran testified regarding the regular hazardous noise to which he was exposed in service. His military occupational specialty (MOS) was that of a voice intercept processing specialist, which means that he transcribed high frequency Russian radio transmissions which had been recorded by other airmen. This position required him to listen to transmissions through earphones at least six hours per day, and he held this position for 32 months. Although the MOS is not one currently known to be associated with hazardous noise exposure, the Veteran explained why he was uniquely exposed to more hazardous noise than the average service member in this position in today's world. Specifically, according to the Veteran's testimony, because he was the best in his unit at interpreting and transcribing the transmissions, he spent far more hours than most listening to them. Further, there would be various types of sound coming across the airwaves in these transmissions, and he would often have to listen to them at full volume to hear the hidden whispered Russian voices, which caused the other sounds to blast through his earphones into his ears. Also, they were using World War II technology, and the Air Force did not have an emphasis on hearing protection that it does today. While this MOS may not be considered as one involving exposure to hazardous noise in current times, a servicemember with this MOS who served in the late 1950s and early 1960s could have been exposed to hazardous noise regularly through their earphones. In light of the Veteran's testimony, the Board finds he was at least as likely as not exposed to hazardous noise in service, and the in-service element is, thus, met for his bilateral tinnitus and bilateral hearing loss claims. As for the Veteran's tinnitus in particular, the Veteran reported to the 2017 VA examiner and testified before the Board at the July 2021 hearing that he began to experience symptoms of tinnitus in service and that they have continued since then. The Board finds the Veteran's statements as to the onset of his symptoms to be credible and that these assertions alone are sufficient to establish the criteria for service connection for tinnitus. As such, his claim for service connection for tinnitus is allowed, as it is a chronic condition for which a continuity of symptoms has been shown since active service. The Board recognizes that the January 2019 VA examiner opined against service connection for the Veteran's tinnitus. Although the Veteran told this examiner that his tinnitus symptoms onset in service, the examiner focused solely on a 2012 VA treatment note where the Veteran told his provider that his tinnitus began in the late 1990s. However, the Veteran clarified this contradictory statement at the Board hearing when he explained that he absolutely first noticed ringing in his ears when he was in service, but did not know what tinnitus was at that time. He was 19 years old and did not give it too much thought as it would come and go, and he thought it was just a normal part of the job he was doing. Although the ringing in his ears continued since service, such symptoms did not really mean anything to him until the late 1990s, when his hearing loss became noticeable and when his tinnitus greatly increased. It does not appear that this examiner asked the Veteran to explain his prior statement, but, rather, relied solely upon it and disregarded the statements he made to him at the time of the examination. Thus, this examiner's opinion is based upon an inaccurate factual premise and holds no probative value in refuting the Veteran's competent and credible reports of his symptoms having started in service and having continued since that time. As for the Veteran's bilateral hearing loss, the Board notes that he does not assert that he noticed symptoms of hearing loss in service. Rather, he says it developed gradually over the years after he separated from service and started to become an issue in the late 1990s. He has also submitted a letter from his private physician, Dr. B.W., MD. Identical versions of this letter were submitted, one dated in May 2021 and one dated in July 2020. Dr. B.W. wrote that the Veteran's bilateral hearing loss was more likely than not due to the exposure to loud sounds during his service in the Air Force transcribing Russian high frequency short wave transmissions. However, as Dr. B.D. did not provide a rationale for this opinion, the Board does not afford it great probative weight. The January 2019 VA examiner also opined against service connection for the Veteran's bilateral hearing loss, but the rationale upon which he relied is flawed. The examiner noted that the Veteran's January 1958 entrance examination contained only whisper test results, but these are of no value in determining the Veteran's hearing when he entered service. The examiner also noted that the Veteran's September 1961 separation examination indicated normal hearing. The Board has reviewed these examinations and notes that the 1961 separation examination used the ASA standard for determining hearing acuity. These results must be converted to the ISO-ANSI standard for determining the Veteran's hearing acuity at the time he separated service. Once converted, the Board finds that, although they are within normal limits, they are on the higher end of the range of normal hearing loss. Thus, it is very possible, given the extent of the hazardous noise to which the Veteran was exposed in service, that there could have been a shift in his hearing acuity in service. Notably, the examiner stated that the Veteran did not experience a shift in hearing acuity in either ear during service but that, without knowing the Veteran's hearing acuity on entry, he did not have the necessary information to make such a finding. For these reasons, the examiner's conclusion does not adequately convince the Board that the Veteran's hearing did not change during service. This examiner also noted that the Veteran's MOS was known to have a low probability for hazardous noise exposure. Specifically, the examiner concluded that the Veteran did not have hearing loss at the time of separation and that gradual hearing loss had been observed since it was first shown in a 2002 audiological examination, forty years after the Veteran separated from service. Thus, because the examiner did not find that the Veteran was exposed to hazardous noise in service and because the first medical record of the Veteran having hearing loss is dated in 2002, the examiner declined to find a nexus between the Veteran's hearing loss and his active service. As discussed previously, the Board has found that this Veteran performing his MOS in the late 1950s and early 1960s was indeed exposed to hazardous noise. For these reasons, the Board finds this examiner's opinions inadequate and affords them no probative value. In light of the above, the evidence of record regarding whether a nexus exists between the Veteran's bilateral hearing loss and his service is in favor of the grant of service connection for this disability. The private opinion, although lacking a rationale, is more probative than the VA examiner's inadequate negative nexus opinion. Accordingly, in affording the Veteran the benefit of the doubt, the Board finds that his bilateral hearing loss is at least as likely as not due to his in-service noise exposure. His claim for service connection for bilateral hearing loss is, thus, allowed. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.