Citation Nr: A21017481 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 200220-69872 DATE: October 28, 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 is related to in-service acoustic trauma. 2. The Veteran's tinnitus is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral 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 August 1957 to August 1961. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claims of service connection for bilateral hearing loss and tinnitus. The Board is bound by the following favorable findings made in the June 2019 rating decision: noise exposure is conceded due to the Veteran's military occupational specialty of Fuel Specialist, and diagnoses of bilateral hearing loss and tinnitus. 38 C.F.R. § 3.104(c). In a February 2020 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), the Veteran timely appealed the June 2019 rating decision and selected a hearing before a Veterans Law Judge (VLJ). 38 C.F.R. § 20.202(b)(2). Accordingly, the Board will consider the evidence of record as of the date of the June 2019 rating decision, evidence submitted at the October 2021 hearing, and evidence submitted within 90 days following the hearing. 38 U.S.C. § 7113(b); 38 C.F.R. § 20.302. In October 2021, the Veteran testified before the undersigned VLJ during a virtual hearing. A transcript of that hearing is not necessary given that the Board is granting the benefits sought in full. As a final preliminary matter, the Board notes that VA treatment records and the Veteran's military personnel record were added to the record after the Veteran's submission of his VA Form 10182, and this evidence has not been considered by the Agency of Original Jurisdiction (AOJ) in conjunction with the matters on appeal. However, as the Board is granting the benefits sought in full, a waiver is not required, and the Veteran is not prejudiced by the Board's adjudication of these claims. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran contends that his continuous symptoms since separation from service of bilateral hearing loss and tinnitus are related to in-service acoustic trauma he experienced while working on the flight line in service as a refueling specialist. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A hearing loss disability is defined for VA compensation purposes using audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Court in Hensley v. Brown, 5 Vet. App. 155, 157 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d), which provides that service connection may 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. Id. The Veteran's March 1961 audiological examination at separation from service was normal, and his service treatment records did not document complaints of, diagnoses, or treatment for hearing loss or tinnitus. Based on a June 2019 VA audiometry examination, the Veteran has met the governing regulatory threshold for bilateral hearing loss outlined in 38 C.F.R. § 3.385. The Veteran met the criteria for a diagnosis of bilateral hearing loss for VA purposes with scores of 92 percent in the right ear and 88 percent in the left ear on the word recognition test, as well as the below auditory threshold results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 65 60 LEFT 10 10 45 75 75 The Veteran therefore has a current bilateral hearing loss disability under VA regulations. 38 C.F.R. § 3.385. In addition, the Veteran is competent to identify tinnitus, as ringing in the ears is readily observable by laypersons and does not require medical expertise to establish its existence. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the Veteran has a current disability of tinnitus. In June 2019, a VA audiologist found the Veteran's hearing loss was not a result of in-service noise exposure. The VA audiologist noted that the Veteran's service treatment records were silent for complaints of acoustic trauma, hearing, or tinnitus, and the results of the Veteran's audiometric testing at separation were within normal limits. The audiologist additionally indicated that there was no date, event, or circumstance of onset of bilateral hearing loss or tinnitus. The Veteran submitted in October 2021 a February 2020 report from a private audiologist. The private audiologist noted the Veteran's reports that he was exposed to significant amounts of excessively loud noise from jet engines as a refueling specialist. The Veteran explained that while engaged in his duties his head was next to the loud motors of the planes. He also reported that he first noticed his tinnitus in July 1960 when he drove to a secluded area and heard the ringing in his ears. The Veteran additionally indicated that his hearing loss has gotten worse over time. The audiologist reasoned that, although the Veteran's separation audiogram showed normal hearing, sensorineural hearing loss has been shown to sometimes take several years post noise exposure before revealing itself on an audiogram. Therefore, even though the Veteran's hearing was normal at separation, it does not necessarily mean that he did not suffer acoustic trauma in the service that affected his current hearing. The audiologist also pointed out that it was an assumption that the results of the Veteran's hearing thresholds on his exit audiogram were at the upper threshold of normal and could not have been susceptible to shift. The Veteran may have experienced a temporary threshold shift at some point while serving, and this cannot be disproven as there were no entrance audiograms or periodic audiograms throughout his service. Thus, after reviewing the Veteran's personal account of noise exposure history and review of his records, it was the private audiologist's opinion that the Veteran's bilateral hearing loss and tinnitus were at least as likely as not related to the acoustic trauma he experienced in service. For the following reasons, entitlement to service connection for bilateral hearing loss and tinnitus is warranted. As an initial matter, the Veteran has current bilateral hearing loss and tinnitus disabilities, and evidence of record, to include the Veteran's military personnel record, of in-service noise exposure is credible and consistent with the circumstances of the Veteran's service as a refueling specialist. 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran meets the current disability and in-service injury or disease requirements. In regard to nexus, the Veteran is competent to report the onset and persistent nature of his bilateral hearing loss and tinnitus symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report observations). There is nothing in the evidence of record to indicate that the Veteran's statements as to the continuous or recurrent nature of his bilateral hearing loss symptoms since service are not credible. While a VA audiology note in 2013 stated that the Veteran reported he experienced the onset of tinnitus 15 to 20 years prior, the Veteran wrote in a July 2019 Statement in Support of Claim (VA Form 21-4138) that his tinnitus has been present since service, and he told the private audiologist in February 2020 that he remembered the exact date, July 12, 1960, he noticed his ears ringing. Thus, the Board finds the Veteran's lay statements as to experiencing bilateral hearing loss and tinnitus with continuous symptoms since service are credible. Furthermore, there is a positive medical nexus opinion from a private audiologist in February 2020 regarding the Veteran's bilateral hearing loss and tinnitus and their relationship to acoustic trauma experienced in service. While the opinion relied in part on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the Veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). As the audiologist explained the reasons for the conclusions based on an accurate characterization of the evidence of record, noting the Veteran's military occupation specialty as a refueling specialist, the opinion is entitled to some probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, the June 2019 VA audiological opinion is inadequate as it did not consider the Veteran's competent and credible lay statements regarding continuous hearing loss and tinnitus symptoms since separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). For the foregoing reasons, there is competent, probative evidence of current disabilities of bilateral hearing loss and tinnitus, in-service injury, specifically acoustic trauma, and a nexus between the two. Entitlement to service connection for bilateral hearing loss and tinnitus is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.