Citation Nr: 21067748 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-47 077 DATE: November 5, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that the Veteran's bilateral hearing loss is etiologically related to military noise exposure. 2. Resolving all reasonable doubt in the Veteran's favor, the evidence is at least in equipoise that his tinnitus is etiologically related to military noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 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. §§ 1101, 1110, 1112, 1113, 1137, 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 August 1974 to August 1978. These matters are before the Board of Veterans' Appeals (the Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a hearing held before the undersigned Veterans Law Judge (VLJ) in November 2021. The transcript of this hearing is not yet available. However, this appeal meets the criteria for VA's "one-touch" initiative program, and, as such, this decision is being prepared pursuant to such program. To provide an immediate response to the Veteran after his hearing, a transcript of the hearing will be added to the Veteran's file later, in the normal course of business. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include tinnitus and sensorineural hearing loss, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 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); see also Walker, 708 F.3d at 1331. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In evaluating service connection claims for hearing loss, it is observed that the threshold for normal hearing is from zero to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley, 5 Vet. App. 155. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran seeks service connection for bilateral hearing loss and tinnitus which he asserts is due to military noise exposure. The Veteran maintains that symptoms of hearing loss and tinnitus began during active-duty service and have continued to worsen ever since. Initially, the Board notes that the Veteran has currently-diagnosed tinnitus and bilateral hearing loss disabilities. First, tinnitus is a type of disability that may be established on the basis of lay evidence alone. Charles v. Principi, 16 Vet. App. 370 (2002). As the Veteran asserts that he experiences ringing in his ears, there is no dispute that he has a current diagnosis of tinnitus. Next, audiological testing at a May 2015 VA examination revealed an auditory threshold of 40 decibels at 500 hertz in the right ear, and an auditory threshold of 45 decibels at 500 hertz in the left ear. As such, the Veteran has a current bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. Therefore, the question in this case is whether a causal relationship or nexus exists between the Veteran's tinnitus and bilateral hearing loss and his claimed military noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in the Veteran's favor and finds that service connection for tinnitus and bilateral hearing loss are warranted. The Veteran's service treatment records have been associated with the claims file, including his May 1974 enlistment examination and June 1978 separation examination. On both examinations, the Veteran denied any subjective hearing loss or ear problems, and the examiners did not report any objective findings related to hearing or ear problems. Audiometric testing performed during service did not reveal that the Veteran experienced any threshold shifts. See 29 C.F.R. § 1904.10 (wherein the Occupational Safety and Health Administration (OSHA) defines a standard threshold shift as an average of 10 decibels or greater at 2000, 3000, and 4000 hertz in one or both ears). As noted above, the Veteran was afforded a VA audiology examination in May 2015. Upon examination, the VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure, finding that the Veteran had normal hearing bilaterally upon entrance and separation from military service. The examiner noted that the audiogram is the objective standard for noise injury, and because the Veteran's hearing was normal at separation, there is no evidence the Veteran's military noise exposure caused a permanent noise injury affecting hearing sensitivity. With regard to tinnitus, the VA examiner concluded that the condition is less likely than not caused by or a result of the Veteran's claimed military noise exposure. The Board finds the May 2015 VA medical opinion to be inadequate because the VA examiner's rationale focused on the absence of documented hearing loss during service, which is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). As such, the medical opinion has not been considered in the Board's decision herein. The Veteran is not prejudiced by VA's failure to obtain an adequate medical opinion on his behalf, as the Board's decision on the Veteran's claims is fully favorable. In a June 2015 lay statement, the Veteran reported that he developed ringing in the ears in service. He believes this developed as the result of constant noise stimuli from multiple sources of exposure on the ship. The Veteran recalled that the office he was assigned to was directly under the helicopter landing area. Helicopters frequently landed and when they did the noise was incredible. The Veteran often traveled to shore on helicopters that were in various states of repair, and many were open door. The Veteran states he was also exposed to missile launching, cannon explosions, and the engine room's multiple mechanical roars which were directly below his office. In addition to these noises, the Veteran was constantly exposed in the office to a typewriter noise, and outside his office was the present sound of needle guns chipping at paint and the auxiliary generator which sounded like a "plane taking off beside [his] office." The Veteran did not wear hearing protection. See June 2015 Lay Statement. In September 2015, the Veteran submitted a private opinion from his private provider, Dr. G. M. In service, the Veteran worked in an office directly below a helicopter landing site, and with an engine room a deck below, with exposure to constant roaring from both sources. At that time, hearing protection was not emphasized for anyone and since that time the Veteran has had chronic hearing problems. Over the years that Dr. G.M. has known the Veteran he reports that the Veteran has been prone to significant hearing problems. Specifically, during visits the Veteran's wife would come with him and to have to repeat some things that Dr. G.M. would say to the Veteran. Dr. G.M. opined that the Veteran's work over the years driving a truck would not have exposed him to the kind of degree of noises to which he was exposed during his time in service, and that therefore it is more likely that the Veteran's hearing loss was caused by his service. Dr. G.M. went on to add that exposure at a young age to these kinds of noises while the Veteran was in the military caused his hearing loss. See September 2015 Private Opinion. The Board acknowledges that the September 2015 private opinion by Dr. G.M. did not use the correct legal standard of "at least as likely as not," however, review of the opinion shows that Dr. G.M. provided a nexus between the Veteran's current hearing loss and his military service based on having treated the Veteran for years, and therefore having familiarity with the Veteran's medical history, military service, and reported occupational noise exposure. Therefore, in the absence of an adequate medical opinion to the contrary, the Board finds the private medical opinion to be probative as to the etiology of the Veteran's bilateral hearing loss disability. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (cautioning VA against seeking a medical opinion where favorable evidence in the record is unrefuted). At his November 2021 Board hearing, the Veteran testified that his bilateral hearing loss began in-service and has persisted since. The Veteran also testified that he could not hear the questions that the VA examiner asked him at his May 2015 examination, and that he did not understand what was being asked. Further, the Veteran testified to experiencing ringing in his ears that began and has continued since service. Resolving reasonable doubt in the Veteran's favor, the Board accepts the Veteran's statements that his symptoms of tinnitus and bilateral hearing loss had their onset during military service and have continued ever since. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation). In this regard, the Board acknowledges that the Veteran is competent to report his symptoms and to provide a history of when these symptoms began and whether the symptoms were intermittent, continuous, or progressive in nature or severity. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board finds the Veteran's statements to be credible and consistent with the nature and circumstances of his service. See Layno, 6 Vet. App. at 469-70. In summary, based on the Veteran's competent and credible statements regarding the onset and continuity of his symptoms of tinnitus and hearing loss, and the September 2015 opinion from Dr. G.M. that it is "more likely" that the Veteran's in-service noise exposure at a young age caused his bilateral hearing loss, the Board finds that the evidence is at least in equipoise that the Veteran's tinnitus and bilateral hearing loss disabilities were caused by in-service noise exposure. Accordingly, resolving all reasonable doubt in the Veteran's favor, the claims for service connection for tinnitus and bilateral hearing loss are granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.