Citation Nr: 21064816 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-22 767 DATE: October 21, 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, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. 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 a helicopter mechanic without use of hearing protection. See April 2016 VA Form 21-526EZ; September 2016 Notice of Disagreement (NOD); April 2017 VA Form 9; July 2021 Board Hearing Transcript at 4-6. 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 May 2016 VA examination report. His service treatment records (STRs) do not identify any complaints, treatment for, or diagnosis of hearing loss or tinnitus, however, the Board finds that the Veteran sustained acoustic trauma in service, based on his military occupation specialty (MOS) of helicopter mechanic 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). Moreover, during the Board hearing, the Veteran related how he was specifically told not to wear hearing protection to be able to hear "the shots when they start shooting at [them] so [they] could take cover," and the Board finds this report credible. See July 2021 Board Hearing Transcript at 3. Thus, elements one and two of service connection are met. With regard to a nexus, there is conflicting evidence. Against the claim is the opinion of the May 2016 VA examiner, who based her unfavorable opinion on the lack of documented tinnitus complaints or significant hearing threshold shifts during service. In opining that that there was no delayed-onset hearing loss, the examiner quoted the Institute of Medicine (IOM), National Academy of Sciences, 2006 article titled Noise and Military Service-Implications for Hearing Loss and Tinnitus, stating "[t]here was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure" and that delayed-onset hearing loss was "unlikely." However, the Board emphasizes that this study also found that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime." See McCray v. Wilkie, 31 Vet. App. 243, 251 (2019). Moreover, the Board, along with the Veteran and his representative, note that the examiner did not comment on the strange findings of the apparent improvement in the Veteran's hearing from enlistment to separation, rendering the opinion of no probative value and inadequate, particularly when it is apparent that those findings are not medically plausible. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Thus, for the aforementioned reasons, the Board finds this opinion inadequate and of no probative value. In favor of the claim is the July 2018 and November 2018 letters from a VA physician and former corpsman and medical officer in the military, who opined that the Veteran's hearing loss was related to service. In noting the Veteran's exposure to high caliber gun fire and noise due to his MOS as a helicopter mechanic, remarked on the enlistment and separation audiograms demonstrating an "improvement" in the Veteran's hearing after having worked on the flight line for 2 years, and stated that that separation examination did not accurately reflect the Veteran's hearing at that time, noting and agreeing with the Veteran's contention that he never received an audiogram at separation. The Board finds this opinion highly probative as it considers the Veteran's lay statements, his noise exposures in military service, and his audiological history, and is based on the physician's extensive experience examining Veterans for service separation. Accordingly, the July 2018 and November 2018 opinions from the VA physician are the only probative evidence of record as to the etiology of the Veteran's bilateral hearing loss. Moreover, the Veteran's statements as to the in-service onset of his tinnitus, which have been consistent over the appeal period and are thus credible, constitute the only probative evidence addressing the etiology of that disability. Thus, 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.