Citation Nr: 21076530 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-15 243 DATE: December 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Enter to service connection for tinnitus, as secondary to hearing loss, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran's bilateral hearing loss disability is attributable to his period of active military service. 2. The Veteran has tinnitus that is reasonably shown to be causally related to service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from October 1975 to October 1978. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran provided testimony before the undersigned Veterans Law Judge (VLJ) at a July 2020 Board hearing. A copy of the transcript has been associated with the claims file. The Board also notes that this matter was previously remanded in May 2021 for the examiner to address the impact of the Veteran's duties as a power generator equipment operations mechanic on his disabilities and to address the theory of delayed onset. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board's remand instructions were substantially complied with). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See 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 of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to service connection for bilateral hearing loss 2. Enter to service connection for tinnitus The Veteran contends that his current bilateral hearing loss and tinnitus disabilities are a result of hazardous noise exposure in service. Specifically, the Veteran argues that his hearing loss and tinnitus disabilities are due to acoustic trauma related to his military occupational specialty (MOS) duties. See Hearing Transcript (July 2020). The record shows that the Veteran's MOS was a power generator equipment operations mechanic. See VA Form DD214. The Veteran asserts that he spent 8 hours a day in the motor pool. His duties involved running large generators for a long period of time and being in the field firing weapons. He contends that he was not exposed to any hazardous noise after service. See Hearing Transcript (July 2020). The Veteran through his representative re-iterates that the VA has conceded exposure to harmful noise in service. In the Appellant Brief dated December 2021, the representative cites to an article by Dr. Sharon G. Kujawa and M.C. Liberman titled "Adding Insult to Injury: Cochlear Nerve Degeneration after Temporary Noise-Induced Hearing Loss" which states that research has been conducted in the area of delayed onset hearing loss. The study referenced by the authors shows that despite a temporary return to normal hearing measurements after noise exposure, there is primary degeneration of cochlear neurons after noise exposure. The authors conclude that hearing damage resulting in degeneration years later may occur, despite "normal" hearing shortly postexposure. The Veteran's representative also cites to excerpts from the "Conclusions and Comments" section of the Institute of Medicine (IOM) study, "Noise and Military Service: Implications for Hearing Loss and Tinnitus," published 2005. The cited portion of the journal states that "With regard to noise-induced tinnitus, specific parameters of hazardous noise exposure have not been defined, but noise levels associated with hearing loss are also likely to be associated with tinnitus." The representative contends that according to the IOM the same level of noise which causes tinnitus are also associated with hearing loss. See December 2021 Appellate Brief. Service connection may be granted for chronic disabilities, such as sensorineural hearing loss and tinnitus, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley at 155, 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. See 38 C.F.R. § 3.303(d). The Board also notes that the absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When the Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley, 5 Vet. App. at 159-160. The Veteran's service treatment records (STRs) are silent for any complaints, symptoms, or treatment for bilateral hearing loss. The Veteran's post service treatment records indicate that the Veteran has had ongoing difficulty with his bilateral hearing loss disability. During both a December 2015 and July 2021 Disability Benefits Questionnaire (DBQ) audiological evaluation it was determined that the Veteran meets the requirements of 38 C.F.R. § 3.385 for hearing loss in the left and right ear. Therefore, the first element of service connection has been established. The Veteran's military occupational specialty was equipment operations mechanic. See Certificate of Release or Discharge From Active Duty DD 214 received December 1978. As such, the Veteran's exposure to hazardous noise during service has been conceded and the second element of service connection is met. Thus, this appeal turns on the third element: whether there is a nexus between the Veteran's current hearing loss and his service. The December 2015 VA examiner concluded that the Veteran's bilateral hearing loss was less likely as not caused by or a result of an event in military service. For rationale the examiner noted the Veteran's enlistment and separation examination reports and stated that both examinations indicated normal hearing and showed no permanent positive threshold shifts during active duty. The examiner further noted that the Veteran served as a generator mechanic in a motor pool in the Army, and that the Veteran reported exposure to noise from artillery with the use of hearing protective devices. Further, the examiner noted that after separation the Veteran reported only doing "odd jobs" for employment, such as jobs in lawn care and as a mechanic. As for tinnitus, the examiner concluded that the Veteran's tinnitus is at least as likely as not a symptom of his hearing loss. However, the examiner opined that the Veteran's tinnitus was less likely as not caused by or a result of military noise exposure. For rationale, the examiner noted that the Veteran did not relate the onset of tinnitus to a time or incident while on active duty. Additionally, the examiner referenced the Veteran's inability to identify the onset of his tinnitus. As the Board previously found, this opinion is inadequate as the December 2015 examiner failed to account for delayed onset of the Veteran's bilateral hearing loss and tinnitus disabilities and failed to consider whether the Veteran's bilateral hearing loss and tinnitus are etiologically related to the Veteran's reports of working on large scale generators and engines, being present in the motor pool for 8 hours a day, lack of hearing protection, as well as noise exposure from firing weapons during active duty service. In its May 2021 decision, the Board determined these opinions inadequate as the examiner relied on the absence of evidence of hearing loss and tinnitus complaints in the Veteran's STRs to conclude that there was no objective in-service noise injury, without adequate consideration of the Veteran's lay statements and circumstances of his service. Thus, the Board assigns no probative value to the December 2015 VA medical opinion concerning service connection for hearing loss and tinnitus on a direct basis. Pursuant to the Board's remand, the Veteran was afforded another examination to assess his hearing loss in July 2021. The examiner essentially provided the same rationale for finding that the Veteran's bilateral hearing loss and tinnitus disabilities were less likely than not caused by or the result of military service. With respect to right and left ear hearing loss, the examiner opined that the Veteran's bilateral hearing loss disability was not at least as likely as not caused by or a result of an event in military service. As rationale, the examiner stated that despite MOS hazardous noise probability and based on VA records, there is no evidence of a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500-6000 Hz, for the right or left ear, from enlistment to separation. Additionally, the examiner stated that the Veteran's right and left ear hearing threshold pattern is indicative of the cumulative effects of Presbycusis. The Board finds that the July 2021 opinion concerning the Veteran's hearing loss is inadequate as the examiner continued to rely primarily on the absence of complaints and symptoms of hearing loss in the Veteran's STRs to support a negative etiological opinion. Furthermore, the July 2021 examiner failed to address the theory of delayed onset of the Veteran's bilateral hearing loss disability. Thus, the Board assigns no probative value to the July 2021 medical opinion. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether statements and testimony by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that hearing loss manifests the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant. The Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The VA examination reports and treatment records note the Veteran's reports detailing his hearing loss symptoms and tinnitus onset within a few years after service as well as his contention that he was exposed to hazardous noise in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. Thus, his statements are credible and probative. In resolving reasonable doubt in the Veteran's favor, a grant of service connection for bilateral hearing loss is warranted. While the Board cannot ignore or disregard the December 2015 and July 2021 DBQ audiologist's medical conclusions, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, both the December 2015 and July 2021 examiner's opinions are problematic because they do not give due weight to the Veteran's competent account of the onset of symptoms or the impact of his duties as an equipment operations specialist; instead, the examiners rely primarily on the fact that the Veteran did not have hearing loss at the time of separation from service or within a year of separation. The examiners also relied on the lack of a significant threshold shift in the Veteran's hearing upon leaving service, which is not a bar to service connection. Additionally, both opinions fail to provide an assessment or offer any insight regarding possible delayed onset of hearing loss that may be associated with the documented in-service hazardous noise exposure. As such, the Board finds that the December 2015 and July 2021 VA audiological examination opinions have no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Indeed, the lack of any evidence showing that the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss, to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Where there is no evidence of the Veteran's hearing disability until many years after separation from service, "if evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Therefore, the December 2015 and July 2021 VA examiners opinions cannot serve as the basis of a denial. The Veteran's assertions, hearing testimony, post service treatment records, and military personnel records of his documented exposure to hazardous noise during active duty support that service connection is warranted for hearing loss. Moreover, the journal articles cited by the Veteran in the Appellate Brief dated December 2021 are assigned significant probative value. The article by Dr. Sharon G. Kujawa and M.C. Liberman titled "Adding Insult to Injury: Cochlear Nerve Degeneration after Temporary Noise-Induced Hearing Loss" demonstrates medical research concluding that despite normal hearing measurements after noise exposure, there is primary degeneration of cochlear neurons and hearing damage that may result in degeneration of hearing years later after exposure despite normal hearing. Accordingly, with resolution of reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is as likely as not related to a delayed onset given the Veteran's uncontested exposure to hazardous noise and his MOS; therefore, service connection for bilateral hearing loss is warranted. The Board also finds that service connection for tinnitus is warranted. The December 2015 and July 2021 VA examiners diagnosed the Veteran with tinnitus. This satisfies the first prong of service connection. As discussed above, the Veteran is now service connected for bilateral hearing loss. This satisfies the second prong of his service connection claim. (Continued on the next page) The December 2015 VA examiner concluded the Veteran's tinnitus is at least as likely as not a symptom associated with the Veteran's hearing loss. This satisfies the third prong of his service connection claim. As the Veteran has herein been granted service connection for bilateral hearing loss, service connection for tinnitus is also granted. In conclusion, service connection for bilateral hearing loss and tinnitus is granted. See 38 U.S.C. §§ 1154(b), 5107; 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.