Citation Nr: 21076896 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-44 536 DATE: December 28, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the current bilateral hearing loss and tinnitus originally manifested during service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a), 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service in the United States Navy from August 1974 to December 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a April 2017, June 2017 and July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in August 2017. The RO issued a Statement of the Case (SOC) in July 2018, and the Veteran submitted a VA Form 9 - Appeal to the Board in September 2018. The July 2017 appeal was timely because the Veteran continuously pursued his original April 2017 denial for hearing loss and the June 2017 denial for tinnitus service connection with a July 2017 supplemental claim, VA Form 21-4138 Statement in Support of Claim. New and material evidence is not needed to reopen these claims, since the earlier decisions never became final. Originally the Veteran did not request a Board hearing on these claims in his September 2018 VA Form 9, but on his December 10, 2018 VA Form 9, he requested an optional live videoconference at his local VA office. Then on his December 12, 2018 VA Form 8, he checked the box to decline an optional Board hearing. The Board sent a letter offering the Veteran a virtual hearing from home instead of going into his local VA office, and the file reflects he chose that option in November 2021. Service Connection The Veteran contends that service connection is warranted for bilateral hearing loss and tinnitus. After review of the evidence, both lay and medical, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for bilateral hearing loss 2. Service connection for tinnitus An organic disease of the nervous system, which includes sensorineural hearing loss and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. The Veteran underwent a VA audiological examination in April 2017. The April 2017 hearing examination Puretone threshold levels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 45 30 35 LEFT 20 20 10 25 35 Speech discrimination score (Maryland CND work list): RIGHT EAR 96% LEFT EAR 96% Based on these findings the Veteran had hearing loss for VA purposes in his right ear, but not in his left. This examination also found the Veteran has a current diagnosis of tinnitus. The April 2017 examiner opined that the Veteran's right ear hearing loss and tinnitus are not service related, because the Veteran's entrance and exit hearing examinations from service were within normal range. Also, the Veteran's tinnitus was intermittent, and the Veteran did not say his tinnitus started in service and continued since service. As part of his supplemental claim, the Veteran submitted a private audiological examination in July 2017. The July 2017 hearing examination Puretone threshold levels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 35 35 LEFT 40 35 20 35 45 Based on the July 2017 audiological testing, the Veteran has bilateral hearing loss according to VA standards. The private examiner also found the Veteran suffered from tinnitus. This examiner opined that the Veteran's hearing loss and tinnitus are related to noise exposure in service. The Veteran was an aircraft mechanic in the Navy for two years and was exposed to excessively loud jet engine noise during service while working in hangars for 8 hours a day. The Veteran said he did not always wear hearing protection while working, because he needed to maintain situational awareness. The private audiologist, like the VA examiner, opined that the Veteran's tinnitus is a symptom of his hearing loss. The Veteran was afforded another VA examination in November 2018. The November 2018 hearing examination Puretone threshold levels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 35 35 LEFT 35 40 25 35 45 Speech discrimination score (Maryland CND work list) in November 2018: RIGHT EAR 96% LEFT EAR 100% Based on these November 2018 findings, the Veteran has bilateral hearing loss for VA purposes. This VA examiner also opined that the Veteran's hearing loss was not service related, because his entrance and exit audiological exams were normal, and the Veteran had no diagnosis of hearing loss in his C-file prior to 2015. He also opined that the Veteran's bilateral tinnitus is as likely as not a symptom of his hearing loss and as such is also not service related. In examining the evidence of record, the Board finds that the Veteran has current disabilities of bilateral hearing loss and bilateral tinnitus. The record also shows that the Veteran was exposed to excessively loud noise during his two years of service in the Navy as an aircraft mechanic. The medical opinions are not in agreement as to whether the Veteran's current hearing loss and tinnitus are attributable to naval service. The Board finds all three medical examiners competent to give medical opinions on the etiology of the Veterans hearing loss and tinnitus, since all three are state licensed audiologists. In weighing the opinions, the Board finds the evidence is in equipoise, because the record is clear that the Veteran was exposed to excessive noise in service, and all the examiners agree that excessive noise can result in hearing loss with tinnitus as a symptom. The two VA examiners point to the lack of symptoms in service and to the time elapsed between service and any indication of hearing loss in the record. The private examiner said the Veteran was unsure when he first noted hearing loss but said he has had problems hearing and understanding people when talking with others for more than 20 years. This examiner also noted that secondary noise effects can develop after termination of the noise exposure. In the private report, the examiner notes that the Veteran's tinnitus had onset during military service. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's hearing loss and tinnitus arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for both hearing loss and tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. 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.