Citation Nr: 21065142 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-25 983 DATE: October 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted Entitlement to service connection for tinnitus, as secondary to bilateral hearing loss, is granted. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was at least as likely as not incurred during service. 2. The Veteran's tinnitus is caused by, or is the result of, his service-connected bilateral hearing loss. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for establishing entitlement service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service in the U.S. Arm from November 1985 to November 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include hearing loss and tinnitus, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted on a secondary basis when the evidence establishes (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512; 38 C.F.R. § 3.310. Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 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 is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 2. Entitlement to service connection for tinnitus The Veteran maintains that he has bilateral hearing loss and tinnitus that is related to acoustic trauma sustained in service. The Board finds that the elements of service connection have been established. With respect to current disability, tinnitus is documented in treating records from April 2018 and VA examinations from May 2014 and March 2018. Accordingly, the Board finds that the first element of service connection for tinnitus. Additionally, bilateral hearing loss as defined by 38 C.F.R. § 3.385 is documented in an April 2018 private audiology evaluation. At this time, the Veteran's auditory threshold was 40 decibels at the 4000 hertz frequency for both ears. The Board notes that the evaluation results are in a graphical form that has not been converted to an appropriate numerical form. However, the interpretation of a graphical audiogram is a finding of fact to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). Here, the Board finds that the graphical representation is clear and can be interpreted, as the form provided a legend for the graphical results. Accordingly, the Board finds that the first element of service connection for hearing loss has been established. With respect to an inservice incurrence, the Veteran asserts that his hearing loss and tinnitus are related to exposure to acoustic trauma during service. The Veteran testified that he was a Chinook helicopter mechanic in the Army, which involved work around turbine engines, APU units, and flight line noise. He elaborated that the noise level on the job was so high, you would have to yell to communicate with another mechanic. He further reported that the only time he used hearing protection for this job was when they were "crewing." See August 2015 Notice of Disagreement. Additionally, the Veteran testified that he began to notice hearing loss and ringing in his ears during service. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds no reason to doubt the credibility of these statements, as military personnel records reveal that the Veteran's military occupational specialty (MOS) was a helicopter mechanic. Additionally, treating records reveal that the Veteran reported an onset of tinnitus in the 1980s. Although the Veteran denied having tinnitus during a VA audiology examination, he later explained that he did not understand what the examiner was asking him and confirmed that he has had tinnitus for many years. Based on the foregoing evidence, the Board finds that the Veteran's in-service incurrence element of his tinnitus and hearing loss claims. The question remaining is whether there is a nexus between the in-service incurrence and the Veteran's current hearing loss and tinnitus. A May 2014 VA examiner provided a positive nexus for hearing loss. In support of her opinion, the examiner noted that the configuration of the Veteran's hearing loss is consistent with a noise induced etiology, military noise exposure has been conceded, and there is no evidence of a valid hearing evaluation at separation from the military. Given these factors, the examiner concluded that a possibility exists that hearing loss was present at separation. The examiner further noted that recreational noise exposure, including hunting without ear protection and shooting at a firing range with ear protection, are contaminating factors. Nevertheless, she concluded that there is a reasonable nexus between his hearing loss and military noise exposure, despite these contaminating factors. This examiner also concluded that the Veteran's tinnitus is at least as likely as not a symptom associated with the Veteran's hearing loss. The examiner reasoned that tinnitus is a symptom of hearing loss. She did note that the Veteran denied having tinnitus at a prior VA examination. However, the Veteran explained that he did not understand what the audiologist was asking at the time and he reported having a tone in his ears that has been present "forever." Consistent with this opinion, a private audiologist concluded in April 2018 that there is at least a 50 percent chance that the Veteran's tinnitus and bilateral hearing loss are the result of his time in service. In support of this conclusion, he noted that there is no record of audiological testing at the time of the Veteran's separation. However, a decrease in was shown in the Veteran's hearing between his enlistment in 1984 and testing preformed in 2014. These opinions are thorough. They are based on the Veteran's history, a review of his service treatment records (STRs), and objective findings from their evaluations of the Veteran. They also consider the competent and credible lay statements made by the Veteran about the onset of his hearing loss and tinnitus. Accordingly, these opinions are highly probative and afforded significant weight. Contrary to these opinions, the March 2018 VA examiner concluded that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The examiner reasoned that the Veteran's accounts of tinnitus were inconsistent, and as a result, it must be assumed that onset of the condition was recent in nature and very distant in time from the Veteran's military service. The examiner did not offer an opinion with respect to the Veteran's hearing loss because the responses on testing were too variable to diagnose the severity of hearing loss. This opinion has minimal probative value. As noted, the Board has concluded that the Veteran's lay statements about the onset of his tinnitus are competent and credible. As the examiner's opinion is based on the opposite conclusion, it is afforded no weight. In sum, the preponderance of the evidence supports finding that the Veteran's bilateral hearing loss was incurred during his active service, and service connection is granted. 38 C.F.R. §§ 3.102; 3.303. As the May 2014 VA examiner concluded that it is at least as likely as not that tinnitus is a symptom of the Veteran's hearing loss disability, service connection for tinnitus as secondary to bilateral hearing loss is also granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.