Citation Nr: 21073997 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 18-45 080 DATE: December 13, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for bilateral lungs is remanded. Entitlement to service connection for a psychiatric disorder, to include anxiety is remanded. FINDINGS OF FACT 1. Bilateral hearing loss had its onset in service. 2. The Veteran's tinnitus had its onset in service. 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, 3.159, 3.303. 2. The criteria of service connection for tinnitus have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1970 to March 1971. In April 2021, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303 (a). 1. Service connection for bilateral hearing loss. The Veteran asserts that he has bilateral hearing loss caused by acoustic trauma suffered as an aircraft mechanic while on active duty. 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 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. 38 C.F.R. § 3.385. Even though a disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The post service record shows that the Veteran meets the current disability requirement for bilateral hearing loss, as a June 2018 VA examination shows bilateral hearing loss of sufficient severity to warrant finding a hearing loss disability under 38 C.F.R. § 3.385. See June 2018 VA examination. Further, the Board concedes that the Veteran had noise exposure in service, as an aircraft mechanic which has a high probability of hazardous noise exposure. The remaining question is whether there is a nexus between the appellant's in-service noise exposure and his current bilateral hearing loss. An audiometric examination in the Veteran's March 1971 hearing examination documents a 20 decibel shift in the right ear threshold from April 1970 measurements taken upon entrance to active duty at 500 Hertz, a 15 decibel shift in the left ear at 500 Hertz, a 10 decibel shift in the right ear and 5 decibel shift in the left ear at 1000 Hertz. The audiometric readings do not show measurements at 3000 Hertz, and hearing loss for VA purposes was not shown at that time. The Veteran was afforded a Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) in June 2018. The VA examiner opined in June 2018 that the Veteran's bilateral hearing loss was less likely than not caused by an event in the military service. She rationalized that there was no permanent auditory change damage on active duty, nor report of decreased hearing in the claims file or separation, and there was "normal hearing on separation with thresholds too low for any permanent significant shift in hearing thresholds to have occurred from entrance". The examiner also commented that the Veteran only served from May 5, 1970 to March 31, 1971, seeming to apply that that acoustic damaged could not have occurred during that timeframe. Here, the Board highlights that hearing loss need not be shown in service for service connection to be established if there is sufficient evidence that a current hearing disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Therefore, the Board finds the nexus opinion provided by the June 2018 VA examination is not probative and affords it no weight. The Veteran testified at the April 2021 Board Hearing. The Veteran presented sworn testimony that he has noticed a decline in his hearing since active-duty service. See April 2021 Board Hearing Transcript. The Veteran has also explained that his observed bilateral hearing loss has been consistent since he left active duty. 38 C.F.R. § 3.303. In sum, having fully considered the record, given the Veteran's current hearing loss disability, his in-service exposure to acoustic trauma, and the evidence of continued symptoms of hearing loss following his service, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral sensorineural hearing loss is related to his in-service acoustic trauma. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for tinnitus. As stated above, in order to obtain service connection under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three-element test: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The Veteran has a current disability - namely tinnitus. Next, there is evidence of an in-service injury. The Veteran served as an aircraft mechanic, which has a high probability for hazardous noise exposure. At the April 2021 Board hearing, the Veteran testified that during service, he experienced ringing in his ears following noise exposure from aircraft, and that the ringing has continued since service. He also testified that he did not experience ringing of the ears prior to entry on to active duty. Accordingly, the Board accepts the Veteran's account of in-service acoustic trauma. The Veteran was afforded a VA examination in June 2018. The examiner opined that the Veteran's tinnitus was less likely as not related service because he stated that the Veteran denied having tinnitus but reported transient ear noise. The Board finds that that there is competent and credible evidence that the Veteran suffers from tinnitus. Importantly, tinnitus is unlike hearing loss, in that it is capable of lay observation. Moreover, the Board credits the Veteran's statements that he has suffered from tinnitus since service. The Veteran has consistently reported the onset in service. Therefore, his opinion as to nexus is both competent and credible. For that reason, the Board finds that the evidence is at least in equipoise. See Fountain v. McDonald, 27 Vet. App. 258 (2015). In light of the foregoing, and applying the doctrine of the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 3. Service connection for bilateral lungs is remanded. 4. Service connection for a psychiatric disorder, to include anxiety is remanded. The Veteran testified at the April 2021 Board hearing that he experienced anxiety while in service, and that his symptoms have persisted since service. The Veteran's sister submitted a statement describing a difference in the Veteran's behavior and emotions after he was discharge from active duty. See Statement from D.H. dated June 2021. The Board also acknowledges the Veteran's March 1971 diagnosis of passive aggressive personality, mild, for which the Veteran was discharged from service. While the Veteran was not diagnosed with a psychiatric disorder at that time, a remand is warranted to determine whether the Veteran's persistent symptoms were evidence of a psychiatric disorder. A VA examination is warranted where there is an indication of a currently diagnosed disorder, or symptoms thereof, that may be related to an in-service incident and no examination has yet been conducted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran also asserts he has a lung disorder that was due to exposure to jet fuel. His military personnel records show that he served in an organizational maintenance squadron and was likely exposed to jet fuel. At the April 2021 Board hearing, the Veteran, through representative, stated that, he experiences symptoms consistent with a lung condition and requested opportunity to provide medical documentation. To date, documentation has not been received. The appellant should be accorded an opportunity to submit the requested development that may aid in the adjudication of this issue. Given the Veteran's testimony, the Board also finds that a remand to afford him a VA examination to obtain a medical opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. 2. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his claimed lung disability. 3. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran has a current lung disability that is related to or had its onset in service. In responding to this inquiry, the examiner must acknowledge and discuss the Veteran's reported in-service exposure to jet fuels during the course of his duties as aircraft mechanic. In this regard, the examiner is advised to accept that he was exposed to jet fuel during service for the purposes of offering such opinion. The examiner is further advised that the basis for a negative opinion must not be based solely on the lack of evidence of a lung disorder in the Veteran's service treatment records or a lack of medical records demonstrating a continuity of care after service. 4. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to evaluate whether the Veteran has a psychiatric disorder, and to determine the nature, onset and etiology of any diagnosed psychiatric condition. All psychiatric disabilities should be identified. The examiner must acknowledge and discuss the Veteran's competent lay statements regarding ongoing symptoms of anxiety since service, which was corroborated by his sister's statement. A rationale for any opinion offered should be provided. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.