Citation Nr: A21016294 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 200522-89703 DATE: October 4, 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 evidence is in equipoise as to whether the Veteran's current bilateral hearing loss is causally related to in-service noise exposure. 2. The evidence is in equipoise as to whether the Veteran's current tinnitus is causally related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 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 from January 1967 to September 1968. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral hearing loss and tinnitus. The Veteran was notified of the RO's decision in a letter dated May 20, 2020. On May 22, 2020, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (NOD) and elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In April 2021, the Veteran testified at a tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In this case, the Veteran has not submitted any additional records since the April 2021 hearing. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including an organic disease of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 259 (holding that with evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a)). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or 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. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran contends that his bilateral hearing loss is due to noise exposure during active duty. See April 2021 Transcript of Hearing, pages 3-10. Service treatment records (STRs) do not contain complaints or findings of hearing loss. At his November 1966 induction examination, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) 10 (20) 10 (15) LEFT 10 (25) 10 (20) 10 (20) 10 (20) 10 (15) (Note: as this audiometric testing was conducted prior to January 1, 1967, the results were presumably reported in American Standards Association (ASA) units. Where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) standard. The converted results are reported in parentheses above). The Veteran's July 1968 separation examination recorded pure tone thresholds, in dB, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 5 (15) 15 (20) LEFT 0 (15) 0 (10) 5 (15) 15 (20) (Note: Given the date of this test, it is unclear whether such thresholds were recorded in using ASA units or ISO-ANSI units; thus, Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal, if any.). At his August 1972 retention examination for the Army Reserve, pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 10 15 LEFT 15 10 15 10 10 The Veteran underwent a VA examination in October 2019 for complaints of hearing loss. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 45 45 LEFT 20 20 40 45 45 Speech recognition using the Maryland CNC word list was 96 percent in the right ear and 96 percent in the left. The audiologist concluded that the Veteran had bilateral sensorineural hearing loss; however, she determined that the Veteran's hearing loss was less likely as not causally related to the Veteran's in-service noise exposure. The audiologist noted in pertinent part, MOS Human Resource specialist with low probability of hazardous noise exposure. Enlistment audio within normal limits. Separation audio within normal limits. Lay evidence: Exposure to gunfire during boot camp and yearly qualifying. Hearing loss most likely due to aging. In support of his claim, the Veteran submitted a Disability Benefits Questionnaire (DBQ) competed by a private audiologist in February 2020. Pure tone thresholds, in dB, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 40 40 LEFT 25 30 35 40 30 Speech recognition using the Maryland CNC word list was 92 percent in the right ear and 92 percent in the left. The audiologist concluded that the Veteran had bilateral sensorineural hearing loss which was at least as likely as not causally related to his in-service noise exposure. In correspondence accompanying the DBQ, the audiologist opined the following in pertinent part, It is my opinion that noise exposure in the military is a contributing factor for the veteran's hearing loss and tinnitus. [The Veteran] was primarily exposed to noise sources including large diesel motor vehicles, APC's and rifle fire. APC's are capable of outputting volume levels up to 118dBA for prolonged periods of time. Military vehicles routinely exceed OSHA action levels. Firearms output impulse noises between approximately 160dB and 190dB depending on caliber. Given the pass/fail entrance screening, missing interoctave test results on active duty separation and the mild high frequency hearing loss on separation from the reserves, it is my opinion that noise exposure in the military is more likely than not a contributing factor for both hearing loss and tinnitus. A VA medical opinion was obtained in May 2020. After review of the Veteran's claims file, the audiologist rendered a negative etiological opinion regarding the Veteran's hearing loss. The audiologist opined, Claimant presents with normal hearing at separation, most notably in the mid to high frequencies which are known to be particularly sensitive to acoustic trauma. In 2005, the Institute of Medicine found that the most profound auditory effects of noise exposure occur immediately following exposure. This suggests that, if caused by military noise exposure, hearing loss and/or threshold shifts would have an onset during service and/or would be present at separation. Therefore, it is less likely than not that the claimant's hearing loss was caused by or a result of military noise exposure. At the April 2021 Board hearing, noted above, the Veteran testified that during active duty he was exposed to unprotected live fire training exercises as an M-14 marksman, heavy equipment noise, and simulated bells with explosives. He testified that he developed ringing on and off during military training, which became constant, and experienced decreased hearing acuity during active service which persisted since that time. The Veteran further testified that he did not have a family history of hearing loss, nor did he encounter noise exposure after separation, either occupationally or recreationally. See April 2021 Transcript of Hearing, pages 3-10. After a review of the evidence, the Board finds that service connection is warranted for bilateral hearing loss. In addressing the first element of a service connection claim, the Board finds that the Veteran currently has bilateral hearing loss. As noted in the October 2019 VA examination, the Veteran's pure tone thresholds for the 2000, 3000, and 4000 Hz frequencies for the right and left ear were 40 decibels or greater. As noted in the February 2020 DBQ, his pure tone thresholds for the 1000, 2000, 3000, and 4000 Hz frequencies were 26 decibels or greater, and his speech recognition scores for both ears were less than 94 percent. Therefore, the Veteran has bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. With regard to the second element, the Board finds in-service noise exposure. The Veteran has reported that he was exposed to unprotected live fire training exercises as an M-14 marksman, heavy equipment noise, and simulated bells with explosives during active service. The Board notes that the Veteran's personnel records indicate that he was awarded an M-14 Expert Marksmanship Badge. Moreover, the RO made a favorable finding conceding noise exposure in-service. Therefore, the Board finds that the record is sufficient to establish an in-service injury in the form of noise exposure. In addressing the third element, the nexus requirement, the Board finds that the evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is causally related to his in-service noise exposure. In this regard, the Board finds the February 2020 DBQ and accompanying positive nexus opinion of great probative weight, as the audiologist rendered his opinion after eliciting a detailed history from the Veteran and thorough review of his service personnel and medical records. Moreover, the audiologist provided a reasoned conclusion and detailed rationale. Additionally, the Board finds the Veteran's April 2021 hearing testimony both competent and credible regarding the circumstances of his in-service noise exposure and subjective decreased hearing acuity during active duty, which has persisted continuously since that time. Therefore, the Board also assigns great probative weight to the Veteran's hearing testimony. The Board assigns less probative weight to the October 2019 VA examination, as the examiner failed to consider the Veteran's statements noting that his decreased hearing acuity began during active duty and has persisted continuously since that time. The Board also assigns less probative weight to the May 2020 VA medical opinion, as the examiner appears to have relied entirely on the Institute of Medicine report in forming his conclusion, without considering all relevant facts in the case or the February 2020 DBQ and accompanying medical opinion. Accordingly, the Board has weighed the probative evidence of record, to include the positive and negative nexus opinions and the competent and credible statements of the Veteran, and finds that the evidence is at least in relative equipoise as to the Veteran's current bilateral hearing loss and the causal relation between the Veteran's disability and his in-service noise exposure. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for bilateral hearing loss. See 38 U.S.C. § 5107. 2. Entitlement to service connection for tinnitus is granted. The Veteran contends that his tinnitus is due to noise exposure during active duty. He asserts that his tinnitus has been present since active duty and has persisted continuously since that time. See April 2021 Transcript of Hearing, page 9. The Veteran's STRs are silent for complaints, observations, or treatment regarding tinnitus. In an October 2019 VA examination, referenced above, the audiologist indicated that the Veteran's tinnitus was less likely than not causally related to the Veteran's active service. The audiologist opined in pertinent part, MOS Human Resource - low probability of noise exposure. Enlistment audio within normal limits. Separation audio within normal limits. Lay evidence: Exposure to gunfire during boot camp and yearly qualifying. Lack of objective and subjective evidence to support. In a February 2020 DBQ, noted above, a private audiologist indicated that the Veteran's tinnitus was at least as likely as not causally related to the Veteran's active service. The audiologist opined, The Veteran was primarily exposed to noise sources including large diesel motor vehicles, APC's and rifle fire. APC's are capable of outputting volume levels up to 118dBA for prolonged periods of time. Military vehicles routinely exceed OSHA action levels. Firearms output impulse noises between approximately 160dB and 190dB depending on caliber. Given the pass/fail entrance screening, missing interoctave test results on active duty separation and the mild high frequency hearing loss on separation from the reserves, it is my opinion that noise exposure in the military is more likely than not a contributing factor for tinnitus. In a May 2020 VA medical opinion, referenced above, the audiologist rendered a negative etiological opinion regarding the Veteran's tinnitus. The audiologist opined in pertinent part, Tinnitus is known to be a self-detectable symptom associated with many conditions and circumstances outside of noise exposure. When caused by noise exposure, tinnitus most commonly accompanies hearing loss and/or significant threshold shifts. Claimant does not present with either hearing loss or significant threshold shifts between audiograms most proximal to documented dates of entry and separation. In 2005, the Institute of Medicine found that the most profound auditory effects of noise exposure occur immediately following exposure. Therefore, it is less likely than not that the claimant's tinnitus was caused by or a result of military noise exposure. At the April 2021 Board hearing, noted above, the Veteran testified that during active duty he was exposed to unprotected live fire training exercises as an M-14 marksman, heavy equipment noise, and simulated bells with explosives. He testified that he developed ringing on and off during military training, which became constant. See April 2021 Transcript of Hearing, page 9. After a review of the evidence, the Board finds that service connection is warranted for tinnitus. With regard to the first element of a service connection claim, the evidence shows a current diagnosis of tinnitus. The October 2019 VA examiner and February 2020 private audiologist noted a diagnosis of tinnitus. Moreover, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination medical in nature, and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). Thus, the Veteran's reports of tinnitus are sufficient to establish the presence of a current disability. As set forth above, the second element for service connection is evidence of an in-service disease or injury. With respect to an in-service injury, the Board finds that the record does contain evidence of in-service noise exposure. The Veteran has reported that he was exposed to unprotected live fire training exercises as an M-14 marksman, heavy equipment noise, and simulated bells with explosives during active service. The Board notes that the Veteran's personnel records indicate that he was awarded an M-14 Expert Marksmanship Badge. Moreover, the RO made a favorable finding conceding noise exposure in-service. Therefore, the Board finds that the record is sufficient to establish an in-service injury in the form of noise exposure. With respect to an in-service disease, however, the Board finds that the evidence is in equipoise. Again, tinnitus is an inherently subjective disability and is therefore readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). Thus, the Veteran is competent to report when he began experiencing tinnitus and the history of his symptoms. Where, as here, a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's lay statements and determine whether they support a finding of service incurrence. Id. If they do, such lay evidence is sufficient to establish service connection. Id. In this case, the Veteran testified at the April 2021 Board hearing that his tinnitus began during active duty. The contemporaneous clinical evidence contains no affirmative evidence that tinnitus was not present during active duty. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the record is sufficient to establish an in-service disease, tinnitus. In addressing the third element, the nexus requirement, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus is causally related to his in-service noise exposure. In this regard, the Board finds the February 2020 DBQ and positive nexus opinion of great probative weight, as the audiologist rendered his opinion after eliciting a detailed history from the Veteran and thorough review of his service personnel and medical records. Moreover, the audiologist provided a reasoned conclusion and detailed rationale. Additionally, the Board finds the Veteran's April 2021 hearing testimony, both competent and credible regarding the circumstances of his in-service noise exposure and the development of tinnitus during military training, which became constant and has persisted continuously since that time. Therefore, the Board also assigns great probative weight to the Veteran's hearing testimony. The Board assigns less probative weight to the October 2019 VA examination, as the examiner failed to consider the Veteran's statements noting that his tinnitus began during active duty and has persisted continuously since that time. The Board also assigns less probative weight to the May 2020 VA medical opinion, as the examiner appears to have relied entirely on the Institute of Medicine report in forming his conclusion, without considering all relevant facts in the case or the February 2020 DBQ and accompanying medical opinion. Accordingly, the Board has weighed the probative evidence of record, to include the positive and negative nexus opinions and the competent and credible statements of the Veteran, and finds that the evidence is at least in relative equipoise as to the Veteran's current tinnitus and the causal relation between the Veteran's disability and his in-service noise exposure. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran's favor and find that the evidence supports the grant of service connection for tinnitus. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.