Citation Nr: 21075580 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-41 874 DATE: December 20, 2021 ORDER The claim for service connection for bilateral hearing loss is reopened. The claim for service connection for tinnitus is reopened. Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral carpal tunnel syndrome is granted. FINDINGS OF FACT 1. In an unappealed June 2012 rating decision, the RO denied service connection for bilateral hearing loss and tinnitus. 2. The evidence received since the June 2012 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hearing loss and tinnitus. 3. The competent and probative evidence of record is at least in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus are related to in-service noise exposure. 4. The competent and probative evidence of record is at least in equipoise as to whether the Veteran's bilateral carpal tunnel syndrome onset in service. CONCLUSIONS OF LAW 1. The June 2012 rating decision denying service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2020). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for bilateral hearing loss has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for tinnitus has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 4. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 5. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 6. The criteria for entitlement to service connection for bilateral carpal tunnel syndrome have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to March 1991, and from February 2003 to July 2003, with additional service in the Air Force Reserves. These matters come before the Board of Veterans' Appeal (Board) on appeal of rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service connection for bilateral hearing loss and tinnitus was initially denied in a June 2012 rating decision. The Veteran did not appeal that decision, nor did he submit new and material evidence within one year. As such, the decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Since that decision, new and material evidence has been associated with the claims file; in particular, the Veteran provided additional testimony on his claims at the April 2021 Board hearing, and June 2016 and July 2021 private opinions in support of his claims. Accordingly, these claims are reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, that list includes and organic diseases of the nervous system (including hearing loss and tinnitus). See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. VA regulations provide that active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.§ 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran asserts that his hearing loss and tinnitus disabilities are due to in-service noise exposure while working as a jet engine mechanic in the Air Force. The Veteran reported onset of tinnitus and hearing loss in and/or shortly after discharge from service, and continuously since service. The Veteran has a current disability of bilateral hearing loss pursuant to 38 C.F.R. § 3.385. This is demonstrated in the April 2017 VA examination, which documents auditory thresholds of 40 decibels or greater at 4000 Hertz in both ears. The examiner also diagnosed bilateral tinnitus. Thus, the first element of service connection is met. In regard to an in-service event, while the Veteran's service treatment records do not reflect hearing loss or related complaints, his personnel records indicate that he served with an Air Force maintenance squadron. Therefore, his exposure to noise has been conceded. The remaining question, then, is whether the claimed disabilities are related to service, to include noise exposure therein. On VA examination in April 2012, the Veteran reported that he served in the Air Force Reserves from 1990 to October 2011 as a crew chief working on aircraft. He noted a history of noise exposure while on active duty and in the Reserves. The examiner found that the Veteran had normal hearing bilaterally, and a hearing loss disability pursuant to 38 C.F.R. § 3.385 was not documented. The examiner indicated that the claimed disability was less likely than not related to service, given that hearing sensitivity within normal limits was documented on examination and hearing evaluations conducted in Reserve service indicated normal hearing sensitivity. With respect to tinnitus, the Veteran reported constant bilateral tinnitus that onset approximately 5 years prior to examination. The examiner also opined that the claimed tinnitus was less likely than not related to service, as he reported onset while he was not on active duty and he had a history of noise exposure as a civilian while working as a crew chief at an Air Force base. He denied ringing of the ears on reports dated in May 2003 and June 2007. A June 2016 report from Ward Hearing indicates that the Veteran reported hearing loss and ringing in the ears. He noted hazardous noise exposure from rifles, jet engines, flight lines, power units, engine run-ups, air compressors, and tools. Hearing evaluation revealed bilateral high frequency hearing loss with Maryland CNC speech discrimination scores of 72 percent in the right ear and 78 percent in the left ear. The Veteran endorsed constant, bilateral tinnitus. The examining audiologist opined that the Veteran's bilateral hearing loss was at least as likely as not related to his military experience as an aircraft crew chief due to acoustic trauma. The audiologist noted that acoustic trauma results in progressive underlying neuropathology that has prolonged long-term consequences on the auditory process. On VA examination in April 2017, the Veteran reported service in the Air Force Reserves with periods of active service. The examiner diagnosed bilateral sensorineural hearing loss and opined that the Veteran's hearing loss was less likely as not caused by or a result of service. In so finding, the examiner noted hearing sensitivity within normal limits at entrance and separation with no clinically significant shift in hearing sensitivity. There was no evidence that the Veteran sustained noise injury based on audiograms. The examiner also cited to a 2006 Institute of Medicine study concluding that hearing loss from noise injuries occurred immediately following exposure. The examiner also opined that the claimed tinnitus was less likely than not related to service because there was no evidence in service of hearing loss or significant threshold changes. The examiner concluded that the Veteran's tinnitus was more likely related ot his post-military acquired hearing loss. During the Veteran's April 2021 Board hearing, the Veteran testified that the June 2016 private opinion was provided by an audiologist who also served as a contractor for VA rating purposes. The Veteran described an incident while on active duty in service in the 1990s where he was exposed to loud noise and experienced ringing in the ears. He indicated that his tinnitus began while on active duty orders and had continued since service. The Veteran also described worsening hearing loss. A July 2021 report from the Ellis Clinic reflects the Veteran's report that he was exposed to loud noises when he was serving as an aircraft mechanic in the Air Force. He started experiencing high-pitched ringing in the ear and hearing loss. After discharge, he had to increase the television volume and add captions. The reviewing physician opined that it is more likely than not that the Veteran's hearing loss is service-connected because of the prolonged exposure to loud noises from working on jet engines and aircrafts when he was a mechanic in the Air Force. He noted that the Veteran's audiogram was consistent with hearing loss due to noise exposure. Also, he opined that the Veteran's tinnitus was related to service noise exposure. With respect to the claimed hearing loss and tinnitus, the Board acknowledges that there are competing opinions with respect to the etiology of the Veteran's hearing loss, with the VA examiners concluding that such a relationship was less likely than not, and the private audiologist related the Veteran's hearing loss to his in-service noise exposure. In this case, while it does not appear that the private audiologist reviewed the Veteran's records, and potentially considered noise exposure from when the Veteran was in the Reserves and not on active duty, he did conduct examination and interview and provided and opinion supporting rationale. This opinion is supported by the 2021 private reviewing physician, as well service personnel records documenting additional periods of ACDUTRA and INACDUTRA. The 2012 examiner based the opinion, in part, on the lack of current hearing loss disabilitywhich is no longer at issue in the Veteran's case. Moreover, the 2012 and 2017 VA examiners indicated that the opinion was partially based on the lack of hearing loss or significant threshold shift in service, when the absence of evidence of such hearing loss in service is not necessarily fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Given the inadequacies of these opinions, the Board finds the medical opinion evidence of record to be in relative equipoise. In light of the Veteran's credible reports of noise exposure in service, the testimony from the Veteran about his hearing loss and tinnitus, and his post-service diagnosis of bilateral sensorineural hearing loss and tinnitus that has been linked to in-service noise exposure by the private audiologist, the Board resolves all reasonable doubt in the Veteran's favor and finds that the preponderance of the evidence supports that the Veteran's hearing loss and tinnitus related to in-service noise exposure. As all three elements of service connection are met, service connection for bilateral hearing loss and tinnitus is warranted. 3. Entitlement to service connection for bilateral carpal tunnel syndrome The Veteran also asserts that his bilateral carpal tunnel syndrome onset in service and is related to in-service duties as a jet engine mechanic. The Veteran's service treatment records reflect that the Veteran endorsed numbness or tingling in the hands or feet on post-deployment questionnaire dated in May 2003. A May 2014 private post-service EMG report reflects that the Veteran was diagnosed with bilateral carpal tunnel syndrome, severe. On VA examination in June 2016, the examiner referred to the 2014 EMG studies revealing bilateral carpal tunnel syndrome. The examiner opined that it is less likely than not that the Veteran's carpal tunnel syndrome is related to a specific exposure event experience by the Veteran during service. She noted that carpal tunnel had specific etiologies and diagnosis. The condition had not been associated with the illness or exposures described in research on Gulf War veterans. She also opined that the claim was otherwise less likely than not related to service. She noted that the Veteran did note numbness or tingling in the hands or feet in service, but there was no service treatment record evidence that the condition was chronic in service. Further, there was no post-service evidence to establish a nexus between the current disability and service. In his February 2017 notice of disagreement, the Veteran reported that his had first experienced symptoms of numbness and tingling in service during deployment and continuously since service. During the Veteran's 2021 Board hearing, he testified that his hand pain and numbness began in service while on active duty in the 1990s, in using various tools as an aircraft mechanic. He noted that he had additional periods of ACDUTRA in this time frame. He indicated that his symptoms worsened to the point of noting them on the 2003 examination after his deployment, and that his symptoms continued after service. The Veteran also reported that the VA examiner did not ask him any questions regarding his carpal tunnel syndrome. A July 2021 report from the Ellis Clinic reflects that the Veteran presented for examination of his carpal tunnel syndrome. The Veteran indicated that he started having pain from using his hand tools, pneumatic tools, and drills when he was working as an aircraft mechanic in the Air Force. He had worsening pain over a period of time from repeated use and overuse of his wrists. He started having tingling, numbness, and weakness of the thumb, index finger, and middle finger. His symptoms had worsened by the end of his Air Force career and he eventually underwent EMG with nerve conduction in 2014, which revealed bilateral carpal tunnel syndrome. The examining physician opined that it is more likely than not that the Veteran's bilateral carpal tunnel is service connection because of the occurrence of symptoms when he was service in the Air Force. The examiner noted that carpal tunnel is a compressive neuropathy of the median nerve and was most common in people who use the wrists in a lot of repetitive, forceful, angular hand movements. The increased pressure in the tunnel from the hypertrophy of flexor synovium led to microcirculation injury of the median nerve. Being a jet engine mechanic and aircraft mechanic, the Veteran was at high risk to develop this. Here, the record reflects current diagnosis of bilateral carpal tunnel syndrome as well as notation of complaints referrable to numbness and tingling in the hands in service. As such, the first two elements of service connection--current disability and in-service incurrenceare met. As to nexus to service, the Board again acknowledges that there are competing opinions with respect to the etiology of the Veteran's carpal tunnel syndrome, with the VA examiner concluding that such a relationship was less likely than not, and the private physician relating the Veteran's carpal tunnel syndrome to his active duty service duties and complaints. In this case, while the VA examiner reviewed the claims file, it does not appear that she elicited a medical history from the Veteranas he noted during the Board hearingor considered his reports of continuous symptoms since service. Although the private physician potentially considered symptoms and duties from when Veteran was in the Reserves and not on active duty and did not indicate that he reviewed the file, he did elicit a medical history from the Veteran and provided rationale for the conclusions reached. As noted above, personnel records also note additional periods of ACDUTRA and INACDUTRA beyond those active service periods note on the title page. Given the foregoing, the Board finds the medical opinion evidence of record to be in relative equipoise. In light of the Veteran's credible reports of symptoms in service as well as the notation of complaint related to hand numbness in service in 2003, and his post-service diagnosis of carpal tunnel syndrome that has been linked service by the private physician, the Board resolves all reasonable doubt in the Veteran's favor and finds that the preponderance of the evidence supports that the Veteran's bilateral carpal tunnel syndrome onset in active service. As all three elements of service connection are met, service connection for bilateral carpal tunnel syndrome is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.