Citation Nr: 21007471 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-43 499 DATE: February 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDING OF FACT It is just as likely as not the Veteran's bilateral hearing loss and tinnitus are from repeated exposure to loud noise and consequent injury (acoustic trauma) during his military service as a radar technician for aircraft. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to December 1968. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, in support of these claims, the Veteran testified at a “virtual” hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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 relevant disease or an injury; and (3) a causal relationship ("nexus") 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). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that his service in the military required frequent and long- term exposure to aircraft on the flight deck – which, since very loud, caused acoustic trauma and resulted in his bilateral hearing loss and tinnitus. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory 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. 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 also explained in Hensley 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 of a relationship between the Veteran's service and his current disability, as opposed to other ("intercurrent") causes.   Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Since tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The record on appeal confirms the Veteran has current diagnoses of tinnitus and bilateral (so left and right ear) hearing loss that is sufficiently severe to, in turn, be considered a ratable disability for VA compensation purposes because he has auditory thresholds of 40 decibels or greater in the relevant frequencies according to the results of his September 2016 VA examination. In addition, VA concedes acoustic trauma in service based on the Veteran’s military occupational specialty (MOS) of radar mechanic listed on his DD Form 214. Therefore, resolution of the appeal of these claims turns instead on whether his currently diagnosed bilateral hearing loss disability and tinnitus are the result of his conceded noise exposure in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Board concludes there is indeed this correlation (“nexus”), especially when resolving all reasonable doubt concerning this in his favor. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   In support of his claims, aside from testifying during his recent hearing, the Veteran submitted a private examiner’s opinion in March 2016. This private examiner opined that it more likely than not the Veteran’s hearing loss and tinnitus are largely due to his active duty service. This private examiner reasoned that the Veteran was exposed to extreme amounts of loud noise while performing his duty on an aircraft carrier along the flight line. This private physician concluded that, it is more likely than not that the noise exposure the Veteran experienced in the military was the beginning of his hearing loss and tinnitus. Conversely, a September 2016 VA compensation examiner opined that the Veteran's hearing loss and tinnitus were not caused by or a result of an event during his military service. This VA examiner reasoned that, despite military noise exposure, the Veteran's hearing was within normal limits in both ears without a significant shift in hearing threshold levels. This VA examiner also cited to a medical journal indicating "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” In other words, this VA examiner discounted the notion of “delayed-onset” hearing loss. And, regarding the additionally claimed tinnitus, the September 2016 VA examiner cited a medical journal stating "[t]here is no research evidence to support a claim of delayed-onset...tinnitus has an immediate onset following an incident of noise exposure." (Pawel Jastreboff, PhD, ScD, MBA, Professor, Dept. of Otolaryngology Emory University School of Medicine and contributing editor to the book, Tinnitus: Theory and Management, ed. JB Snow, Jr, BC Decker, Hamilton, London, 2004. This VA examiner resultantly concluded that it is less than likely the Veteran's tinnitus is due to or a symptom of his hearing loss since research has indicated that tinnitus, itself, is not caused by or a symptom of hearing loss; hearing loss and tinnitus are both symptoms of other diseases/insults. In contemporaneous September 2016 correspondence, the Veteran related that, after leaving service, he had hearing concerns, including ringing in his ears. However, he explained that he never considered seeking treatment for the issue since, when he separated from service, having medical insurance was not easily attainable and persons only sought medical treatment for major issues. He considered himself one of the fortunate ones since he was not severely injured like other Veterans while in the military, so he did not consider any medical issue he had on the same magnitude or level of urgency as theirs. The Board ultimately does not find either the opinion against the claim or the one supporting it more probative, and in this state of relative balance (equipoise) the Board must resolve this reasonable doubt in the Veteran’s favor and grant rather than deny the claims. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In Hensley, the Court clarified that there need not necessarily be indication of hearing loss during service, only that there is sufficient evidence now linking the hearing loss to the Veteran’s service, as opposed to something else (“intercurrent” injury). And, while it is true the medical journal cited by the VA examiner posits there is not enough evidence to support the notion of “delayed onset” of hearing loss, and that, based upon available data, delayed effect of noise exposure is unlikely to occur, he could not outright rule out this possibility since the studies, even those mentioned, did not categorically. Moreover, the Veteran is competent to say he has had difficulty hearing since his service and even more so that he has had recurrent tinnitus (ringing in his ears) since, as explained, the latter disease is the type that he can comment on even as a layman. And there is no inherent reason to question his credibility concerning either, including in terms of how long he has experienced these conditions and their effects.   “Absolute” etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Rather, this need only be an "as likely as not" proposition, which in this instance it is for the reasons and bases discussed. Accordingly, the Board finds that service connection is warranted for the Veteran's bilateral hearing loss disability and tinnitus. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.