Citation Nr: A21017409 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 200121-62072 DATE: October 27, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing is granted. Entitlement to service connection for interstitial pneumonia is granted. FINDINGS OF FACT 1. The Veteran's tinnitus was incurred during his period of service. 2. The Veteran's bilateral hearing loss was incurred during his period of service. 3. The Veteran's interstitial pneumonia was incurred during his period of service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for bilateral hearing have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.85. 3. The criteria for an award of service connection for interstitial pneumonia have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1952 to February 1956. The matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2020 rating decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In December 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested an informational conference and a review of the August 2019 rating decision. In January 2020, an informal conference was held, and later that month, the RO issued the HLR decision on appeal, which considered the evidence of record at the time of the August 2019 rating decision. The Veteran timely appealed this AMA rating decision to the Board, with the submission of a January 2020 VA Form 10182 and requested a hearing with a Veterans Law Judge (VLJ), with the option to submit additional evidentiary support within 90 days following the hearing. 38 C.F.R. § 20.302. In August 2021, the Veteran testified at a videoconference Board hearing before the undersigned VLJ. A copy of the transcript is of record. 1. Entitlement to service connection for tinnitus is granted. 2. Entitlement to service connection for bilateral hearing loss is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Hearing loss is a chronic condition, as outlined in 38 C.F.R. § 3.309 (a). Tinnitus is considered an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258, 275-75 (2015). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran underwent a VA examination in August 2019. The pure tone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 75 80 90 LEFT 60 60 65 70 75 The average pure tone threshold was 80 decibels in the right ear and 98 in the left. His word recognition score using the Maryland CNC test was 40 percent in the right ear and 46 percent in the left. The Veteran's bilateral hearing loss meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385. Thus, the first element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. Tinnitus is a condition that is capable of lay observation, and the Veteran's reports of ringing in his ears are credible. Charles v. Principi, 16 Vet. App. 370 (2002). The first element of a service connection claim regarding tinnitus is also satisfied. The Veteran consistently argued that his hearing loss started in service. He competently and credibly testified that he did a lot of firing of five inches 55- and 20-millimeter canons and worked in the machine shop doing submarine repairs, with as many "as 25 people running machinery at the same time, ... with no hearing protection." Regarding his tinnitus, he testified that while he could not remember when exactly it started, he had it for as long as he could remember. He did "not remember not having it." The Board notes that the Veteran also testified that although he worked after service with machines and dyes at the same level noise as in the ship, he was forced to wear heading aids 11 years after service. The Board finds the Veteran's statements regarding his in-service noise exposure to be both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. The Veteran's DD-214 confirms that he served on the USS Bushnell and was a machinery repairman. Thus, the second element of a service connection claim is satisfied concerning both issues. Shedden, 381 F.3d at 1166-67. During the August 2019 examination, the Veteran reported difficulty with hearing speech when not wearing his hearing aids, having constant bilateral tinnitus for as long as he could remember. The examiner conceded that the Veteran was exposed to in-service noise yet rendered a negative nexus to service. He explained that The Veteran reported his hearing loss gradually started 35+ years ago. He was exposed to noise on a Navy ship for 3.5 years and worked around machine noise as a civilian for his whole career. His service medical records showed no audiograms, so the status of his hearing at enlistment and separation is unknown. [Further], there [wa]s insufficient 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, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur. [Moreover,] even though the Veteran currently has hearing loss, and he was exposed to noise in the service, [it] does not necessarily mean his current hearing loss was caused by the noise exposure (since there is no scientific evidence to support the delayed onset of hearing loss as stated above). Without a separation audiogram, it cannot be determined if he had hearing loss at separation without resorting to speculation. The Board finds the VA audiological examiner's findings inconclusive. Here, the examiner provided the absence of in-service audiology records as the reason why a non-speculative opinion could not be rendered. Jones v. Shinseki, 23 Vet. App. 382, (2010). Although he explained why he could not provide an opinion without resorting to mere speculation, the Board finds the reasoning lacking. As such, the Board affords the opinion limited probative value. The probative evidence of record shows that the Veteran had in-service hazardous noise exposure. He was also exposed to post-service noise exposure and was prescribed hearing aids 11 years after service. VA has conceded noise exposure. Considering the totality of the record, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's bilateral hearing loss and his tinnitus are due to in-service noise exposure. Accordingly, the Board finds that granting service connection for bilateral hearing loss and tinnitus is consistent with VA's policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). The claims are herein granted. C. Entitlement to service connection for interstitial pneumonia is granted. The Veteran has been diagnosed with interstitial pneumonitis. He contends that it is due to exposure to asbestos while serving aboard USS Bushnell. During his August 2021 Board hearing, he competently and credibly testified that his bed was on the O1 deck and just above the boat deck and when the five-inch 55 canons were fired, that shook the floor, the dust from the fiberglass would end up on him and in his bed. Also, he had exposure in the machine shop for asbestos was used for the insulation of that heat-treated furnace and machines. He has had no known exposure after service. In October 2021, in support of his claim, he provided a positive opinion from Dr. R. J. L., his treating physician and professor of Medicine, Froedtert Medical College, Wisconsin. Dr. R. J. L. explained that the Veteran did not suffer from the asbestos-related respiratory condition until after military service. His chest computed tomography (CT) findings were consistent with asbestosis, which did not become symptomatic until years after service. Dr. R.J.L. stated that it was at least as likely as not that the Veteran's interstitial pneumonitis was due to asbestos exposure in service because his job as a machinery repairman had a high probability of asbestos exposure, and that the initial injury to his lungs began then but did not become symptomatic until his later years. (Continued on the next page) The Board finds that the private nexus opinion by Dr. R. J. L. was most probative to a finding of a nexus. The opinion was provided by his clinician, who had knowledge of the Veteran's medical history and was supported by a thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no contrary opinion of record. Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for interstitial pneumonitis. 38 U.S.C. § 5107 (b) (2012). Service connection is, therefore, granted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.