Citation Nr: 21007176 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-35 455 DATE: February 8, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Bilateral hearing loss is related to service. 2. Tinnitus is related to service or to bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from November 1965 to May 1966 and on active duty from May 1968 to September 1969. This appeal is before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In February 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) via videoconference. For reasons unclear from the record, the Veteran testified during a second Board hearing in December 2020, also before the undersigned VLJ. Transcripts of both hearings are included in the claims file. In June 2018, the Board remanded the Veteran’s appeal with instruction to obtain current treatment records and to provide a VA examination. The appropriate records were obtained, and he underwent a VA examination in March 2019. The Board also reopened and remanded a claim of entitlement to service connection for a cervical spine disability. Service connection was granted in a September 2019 rating decision, and this issue is therefore no longer before the Board. The is therefore satisfied that the instructions in its June 2018 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran claims service connection for hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) 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. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of service connection, the abovementioned disease or injury must be incurred or aggravated in the active military, naval or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term “active military, naval or air service” is further defined as (1) active duty or a period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C. § 101(24). Service connection for disability arising from INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in the line of duty, (with the exceptions for acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, not pertinent here). See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). 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 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; 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 the claimant. 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 of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these 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. Prior to January 1, 1967, in-service audiological evaluation was performed using American Standards Association (ASA) units. Since 1975, however, VA has evaluated hearing loss under International Standards Organization-American National Standards Institute (ISO-ANSI) units. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 Service treatment records do not reflect any symptoms of or treatment for hearing loss or tinnitus. At his September 1965 entrance examination prior to his initial period of ACDUTRA, pure tone thresholds were listed as “normal” but were not numerically recorded. At his April 1966 examination upon separation from ACDUTRA, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 No record 25 LEFT 30 25 30 No record 25 Speech audiometry was not recorded. No hearing abnormality was noted. At his April 1968 entrance examination for his period of active duty service, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 No record 5 LEFT 0 0 0 No record 15 Speech audiometry was not recorded. No hearing abnormality was noted, and in the accompanying report of medical history he explicitly denied having ever experienced hearing loss. At a July 1969 medical board examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 No record 10 LEFT 25 10 10 No record 20 Speech audiometry was not recorded. No hearing abnormality was noted. At his August 1969 separation examination for his period of active duty service, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 No record 5 LEFT 5 5 5 No record 5 Speech audiometry was not recorded. No hearing abnormality was noted, and in the accompanying report of medical history he explicitly denied having ever experienced hearing loss. In his March 2012 claim, the Veteran stated that his hearing loss and tinnitus arose in 1965/1966, during his initial period of ACDUTRA. In his July 2013 notice of disagreement, he attributed his hearing loss and tinnitus to artillery weapons and large infantry weapon training. In a January 2015 statement, the Veteran’s wife reported that they were married approximately one year after his discharge. She reported that from the time they were married he has had difficulty hearing that became increasingly worse over 43 years. She reported that he turns the television volume to its loudest setting, she has to speak much louder to him, and he misses parts of conversations. In May 2015 the Veteran submitted an undated private audiogram. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 60 65 65 LEFT 30 25 50 60 55 Speech discrimination testing was conducted but it is not clear whether the Maryland CNC test was used. At his February 2018 hearing, the Veteran reported that he was exposed to noise in service from weapons used in infantry training. Private treatment records include a February 2018 audiogram. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 80 80 75 LEFT 30 35 70 75 75 Speech discrimination testing was not conducted. In a March 2018 letter, the Veteran’s private audiologist opined that it was extremely likely that 50 percent or more of his current hearing loss was a direct result of military exposure. This opinion was based on the rationale that the February 2018 hearing evaluation was consistent with noise-induced hearing loss, with mild to moderate hearing loss in the low frequencies sloping to severe loss in the mid frequencies. The audiologist explained that exposure to noise can lead to subtle damage that was not necessarily revealed by a standard hearing evaluation, particularly when the high frequencies are not recorded, because noise-induced hearing loss normally presents first in the high frequencies. The audiologist noted that high frequencies were not recorded at the August 1969 separation examination. VA treatment records reflect that in March 2018 the Veteran reported hearing loss and tinnitus. He reported a history of military noise exposure, including artillery fire and weapons. He reported a history of occupational noise exposure including heavy equipment and diesel engines. He reported constant bilateral tonal tinnitus which began several years prior. He was diagnosed with bilateral sensorineural hearing loss and provided hearing aids. The Veteran underwent a VA examination in March 2019. He reported that he missed conversations and had to ask others to repeat themselves. He reported tinnitus that arose many years ago. He reported in-service noise exposure with ear protection worn part of the time. He reported civilian noise exposure from farm equipment without ear protection. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 55 50 50 LEFT 35 40 55 60 60 Speech discrimination testing revealed speech recognition ability of 92 percent in each ear. He was diagnosed with bilateral sensorineural hearing loss and tinnitus. The examiner opined that hearing loss was less likely than not related to service. This opinion was based on the rationale that his entrance and separation examinations during his final period of service in May 1968 and September 1969 were well within normal limits and showed no significant change in hearing during service. The examiner explained that the hearing loss observed by the Veteran’s wife was likely the result of his reported civilian noise exposure. In addressing the private audiologist’s March 2018 opinion, the examiner further explained that the audiogram printouts in the Veteran’s service treatment records indicate that his hearing was normal at the 6000 hertz level. The examiner further opined that tinnitus was less likely than not related to service. This opinion was based on the rationale that there was no specific noise event in service, and there is no objective evidence of a noise injury in service. At his December 2020 hearing, the Veteran reported that the noise he was exposed to working on a farm as a civilian was much softer than the noise he was exposed to in service. He reported that his brother, who did not serve, worked alongside him at the farm and never had a hearing issue. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to service. The March 2019 VA examiner’s opinion focuses on whether there was a significant threshold shift from May 1968 to September 1969. The Veteran, however, has claimed that he was initially exposed to noise during his period of ACDUTRA from November 1965 to May 1966. His separation examination from this period strangely shows thresholds significantly higher than any shown in his period of active duty, and his thresholds were not even recorded upon induction. The VA examiner does not address this point. As to the examiner’s contention that hearing loss was caused by civilian noise exposure from farm equipment, the Veteran countered this opinion with his own evaluation of the relative volume of such noise at his December 2020 hearing. As such, the Board finds that the VA examiner’s opinion is no more probative than the March 2018 private opinion, which offers a rationale for concluding that hearing loss is at least as likely as not related to service. For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to service, and service connection is therefore granted. The Board further finds that the evidence is at least in equipoise as to whether tinnitus is related to service or to hearing loss. The VA examiner’s opinion on tinnitus essentially relies on the hearing loss opinion, implicitly finding that the two disabilities are related with a common etiology. For these reasons, the Board finds that the evidence is at least in equipoise as to whether tinnitus is related to service or to hearing loss. Service connection is therefore granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.