Citation Nr: 21065349 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-02 837A DATE: October 25, 2021 ORDER New and material evidence having been received, the previously denied claim of service connection for hearing loss is reopened. New and material evidence having been received, the previously denied claim of service connection for tinnitus is reopened. Service connection for hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's hearing loss is related to his military service. 2. The Veteran's tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss are met. 38 U.S.C. §§ 1110, 1131, 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, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1954 to May 1958, and from August 1958 to August 1974. The case is on appeal from a January 2016 rating decision. The January 2016 decision also denied service connection for bilateral peripheral neuropathy of the lower extremities. In a July 2016 notice of disagreement (NOD), the Veteran appealed the issues of service connection for hearing loss, tinnitus, and bilateral peripheral neuropathy of the lower extremities. In a subsequent February 2019 rating decision, the RO granted service connection for bilateral peripheral neuropathy of the lower extremities as secondary to the Veteran's service-connected diabetes mellitus type II. As the benefit sought has been granted in full, the issues are no longer on appeal. As such, the only issues on appeal are the claims of service connection for hearing loss and tinnitus. The Veteran testified at a Board hearing in July 2021. The record was held opened for 60 days. The Veteran submitted additional evidence in the form of medical records during that period. Also, the RO associated additional evidence with the Veteran's claim's file subsequent to the statement of the case (SOC) issued in February 2019. As the benefits to which the evidence partly relates is fully allowed on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for hearing loss. 2. Whether new and material evidence has been received to reopen the previously denied claim of service connection for tinnitus. By a July 2011 rating decision, the claims of service connection for hearing loss and tinnitus were denied on the basis of no nexus to military service. The Veteran was notified of the decision by letter later in August 2011, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claims was received until the present claim to reopen in September 2015. No new evidence or notice of disagreement was received by VA within one year of the issuance of the July 2011 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In an August 2021 opinion, the Veteran's private ENT specialist, Dr. C.C.W., indicated that the Veteran's 20 years of loud noise exposure while serving in the Air Force contributed to a large degree to his hearing loss. Additional treatment records from Dr. C.C.W. and dated in July 2021, indicate that the Veteran's tinnitus is directly related to his bilateral sensorineural hearing loss. The Board finds new and material evidence has been submitted so that the previously denied claims of service connection for hearing loss and tinnitus are reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis 3. Service connection for hearing loss. The Veteran maintains that his bilateral hearing loss is related to excessive noise exposure during service as it had its onset during that time. See Board hearing transcript, p.4. As an initial matter, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss pursuant to 38 C.F.R. § 3.385. As such, the current disability element of the claim is established. Service personnel records (SPRs) also show that the Veteran retired from the Air Force after 20 years of service as an aerospace ground power equipment repairman. During his July 2021 Board hearing, the Veteran testified that his military specialty exposed him to constant high frequency noises from B-52 Bombers and other jet engines. The Veteran also asserted that he spent a considerable amount of time in the flight line during the Vietnam war which also exposed him to loud noise. See Board hearing transcript, pp. 4 and 8. Thus, noise exposure during service is established as it is consistent wit the circumstances and places of the Veteran's service. Therefore, the in-service element of the claim has been also established. Now, the question for the Board is whether a nexus exists between the Veteran's in-service exposure to loud noise and his current hearing loss. In that regard, the record contains evidence in favor and against the claim. Post-service treatment records show that in March 2009, the Veteran was seen, in pertinent part, for super sensitivity to sound and hearing loss. The ENT specialist at the time noted that the Veteran's hearing loss has been progressive since 2007 and found relevant the fact that the Veteran does not have a family history of hearing loss but worked around jet engines which exposed him to loud noise. See March 27, 2009 records from Washington University, Department of Otolaryngology. Subsequent treatment records from the Washington University's Department of Otolaryngology show that the Veteran's hearing loss dates back to 20 years of military service in which he was exposed to loud noise. The provider noted that "it is likely that these exposures [played a] significant role in his sensorineural hearing loss. The records reflect diagnoses of sensorineural hearing loss of both ears and noise-induced hearing loss of both ears. See July 2021 ENT progress notes from Dr. C.C.W. With particular relevance here, the provider also indicated that the Veteran has a diagnosis of tinnitus described as "phantom ear sounds," which he opined is related to his sensorineural hearing loss. The Veteran was afforded a VA audiology examination in October 2010. The examination report reflects normal to severe high frequency sensorineural hearing loss in the right ear, and flat moderately severe to severe sensorineural hearing loss in the left ear. The VA audiologist noted that the Veteran served in the Air Force from 1954 to 1974 and acknowledged that the Veteran was exposed to excessive noise "in the band," as a diesel mechanic, and working on the flight line. The examiner also indicated that the Veteran had minimum to none post service noise exposure as he only did occasional woodwork with hearing protection. The report further shows that the Veteran does not have a family history of hearing loss. The examiner, however, noted that the Veteran "did not specifically attribute his hearing loss to his tenure in the military. The VA audiologist opined that that the claimed hearing loss is not at least as likely as not related to his military service. In support of her opinion, she indicated that after review of the claim's file, audiometric data indicated normal whisper tests bilaterally at entrance in May 1954, normal hearing bilaterally from 250 Hz to 8000 Hz in May 1958, and normal hearing bilaterally from 500 Hz to 6000 Hz at separation in May 1974. In addition, the VA audiologist noted that STRs do not show hearing loss complains during service and that per review of the Veteran's treatment records, the onset of his hearing loss was three and a half years ago (i.e., 2006), along with the onset of nonservice-connected Meniere's disease. In September 2021, the Veteran submitted an August 2021 medical opinion from his private attending physician. Dr. K.L.P. indicated that the Veteran, a patient of his family practice, served in the U.S. Air Force for 20 years, being the majority of his time spent working on a flight line. The private physician stated that the Veteran now suffers from moderate hearing loss requiring bilateral hearing aids and opined that the Veteran's service in the U.S. military contributed to a large degree to his hearing loss. With respect to the October 2010 VA examination, the Board notes that while the examiner indicated that the Veteran "did not specifically attribute his hearing loss to his tenure in the military," the Board notes that the Veteran's and his representative's statements during the July 2021 Board hearing suggest otherwise. This is also supported by the Veteran's claim for service connection for hearing loss which sufficiently indicates that he believes that his hearing loss is related to service and the Veteran's statements during the October 2010 VA examination indicating that his post-service noise exposure was little to none. The Board also notes that the October 2010 VA audiologist did not discuss relevant evidence found in the Veteran's STRs. In that respect, STRs show that the Veteran was first afforded an audiometric testing in May 1958. The audiogram shows, in pertinent part, pure tone thresholds, in decibels, of -5 at 4000 Hz for the right ear, and of -10 at 4000 Hz for the left ear. The Board notes that prior to 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Standards Organization American National Standards Institute (ISO-ANSI) standards. Historically, the Board has considered that since the military adopted ISO-ANSI standards as of November 1, 1967, any military audiograms conducted prior to November 1967 would be converted from ASA to ISO-ANSI units. The Board's policy is to assume that service department audiometric test results prior to January 1, 1967, were reported in ASA standards, and that audiometric test results since December 31, 1970, were reported in ISO-ANSI standards, relying on the unit measurements most favorable to the Veteran's Appeal. To convert from ASA to ISO-ANSI units, 10 decibels are added to the reported findings in most frequencies, including 6000 Hertz. Converting the May 1958 results from ASA to ISO-ANSI values results in pure tone threshold, in decibels, as follows: HERTZ 05/13/1958 500 1000 2000 3000 4000 RIGHT 15 10 10 5 0 LEFT 10 5 10 0 -5 The above pure tone thresholds represent a normal hearing bilaterally for VA purposes. The report further reflects that the Veteran's hearing was estimated as "good." While the October 2010 VA examiner made reference to a May 1974 separation audiogram, a thorough review of the Veteran's STRs show that the last audiometric testing of record is dated January 5, 1970. Converting the January 1970 results from ASA to ISO-ANSI values results in pure tone threshold, in decibels, as follows: HERTZ 01/05/1970 500 1000 2000 3000 4000 RIGHT 20 20 20 15 20 LEFT 25 15 10 20 30 Although these results do not represent hearing loss impairment for VA purposes, it does reflect some degree of high frequency bilateral hearing loss during service when compared with results proximate to service entrance. The report also reflects that the Veteran's hearing estimate changed from "good" to "fair." Additionally, the October 2010 VA examination report reflects sensorineural hearing loss, worst in the same high frequencies for both the right and left ear. The Board has considered the lay and medical evidence of record and finds the August 2021 private opinion from the Veteran's attending physician persuasive and accords it great probative weight with respect to the nexus element of the claim. Although the September 2021 private opinion from Dr. K.L.P. does not necessarily contain a rationale, the opinion appears to be well supported by the Veteran's lay statements with respect to the excessive noise exposure to which he was subjected to for 20 years of service with his particular Air Force specialty, the March 2009 ENT specialist finding his in-service noise exposure relevant to his hearing loss, the July 2021 private ENT notes indicating that it is likely that these noise exposures played a significant role in his sensorineural hearing loss, the in-service pure tone threshold shifts noted above, and the fact that additional post-service medical records show complains of tinnitus (i.e. see January 3, 1994 progress notes), which the Veteran's ENT specialist found as related to his hearing loss, and which in turn suggests that the Veteran's hearing loss was present since that time, the Board finds that the Veteran's hearing loss is the result of the established hazardous noise exposure during service. When considering the opinions against and in favor of the claim, the Board finds that the evidence is in equipoise as to whether the Veteran's current bilateral hearing loss is a result of service. Consequently, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Service connection for tinnitus. Similarly, the Veteran contends that service connection for tinnitus is warranted as it had its onset during service as a result of his exposure to excessive loud noises as result of his Air Force specialty. See Board hearing transcript, p.6. Initially, the Board notes that the Veteran has a diagnosis of tinnitus. See October 2010 VA examination. As such, the current disability element of the claim is established. As previously noted, hazardous noise exposure during service has been also established as it is consistent with the circumstances and places of the Veteran's service. Therefore, the in-service element of the claim is also established. As to the nexus question, post-service treatment records reflect that the Veteran reported a ringing that bothers his ears. See January 3, 1994 progress notes from Scott Air Force Base Medical Center. See also November 29, 2007 progress notes (the Veteran reported that there is still ringing). The Veteran was afforded a VA examination in October 2010 in connection with this claim. The VA audiologist noted that the Veteran complains of constant bilateral tinnitus significantly worse in the left ear. The examiner noted that the onset was three and a half years ago (i.e., 2006) and that STRs are silent for complains or treatment for tinnitus. In sum, the examiner opined that claimed disability is not at least as likely as not related to his military noise exposure as the onset of the Veteran's tinnitus happened in or around 2006, as a result of his nonservice-connected Meniere's disease. In September 2021, the Veteran submitted private treatment records from his attending ENT specialist. Dr. C.C.W. noted that upon review of the Veteran's treatment records, medical data, and the Veteran's statements, his hearing loss and bilateral tinnitus date back to the Veteran's 20 years of military service in which he was exposed to loud noise. The physician also noted that the Veteran's tinnitus and sensorineural hearing loss are related. See July 29, 2021 progress notes. Based on the evidence of record, and despite the negative October 2010 VA opinion with regard to the etiology of the claimed disability, the Board determines that the Veteran's statements are competent and credible regarding the onset of the condition as he can attest about the symptoms of which he has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, the October 2010 VA audiologist opinion seems to have been based on inaccurate or incomplete information as she indicated that the onset of the Veteran's tinnitus was three and a half years ago, whereas post-service treatment records reflect complains of ringing in the ears many years before. Although a positive nexus opinion per se was not included with the September 2021 private treatment records and nexus opinion for hearing loss, the ENT specialist's notes indicating that the Veteran's tinnitus is related to his sensorineural hearing loss is persuasive and renders the evidence at least in equipoise with respect to the nexus element of the claim. The record shows that the physician established an etiology for treatment purposes and based on a review of the Veteran's medical history, his lay statements, and upon consideration of the particular circumstances of his service. Given the Veteran's in-service exposure to loud noise; his competent, credible reports of the onset of his tinnitus symptoms; and resolving reasonable doubt in his favor, the Board finds that his current tinnitus had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for tinnitus is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.