Citation Nr: 21010437 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-24 853 DATE: February 24, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The evidence of record supports finding that the Veteran’s bilateral hearing loss occurred in, or is the result of, his period of active duty service. 2. The evidence of record supports finding that the Veteran’s bilateral tinnitus occurred in, or is the result of, his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 2. The criteria for entitlement to service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to June 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A Board hearing was conducted via video conference in conjunction with the RO in Little Rock, Arkansas. A transcript of this hearing is contained within the electronic claims file. See September 30, 2020, Hearing Transcript (Tr.). The Veteran argues that he was exposed to loud noises during service, such as from aircraft, by virtue of his duties as an electrician. The Veteran also contends that he never was issued protective ear equipment while in service. Id. at 4. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1131. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). For VA purposes, service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to 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. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Military personnel records (MPRs) show that the Veteran served aboard the U.S.S. Princeton as an Electrician. The Veteran documented his duties as maintaining navigation grids, fire control gear, and all types of communication such as bridge-to-engine room communication. Service treatment records (STRs) do not contain formal audiological tests, at either entrance or separation. An entrance whisper test was conducted and revealed normal hearing. There are a multitude of private and VA medical center (VAMC) records that verify complaints of tinnitus and hearing loss. A July 2017 VA examination report noted audiological examination of the Veteran and review of the claims file and recited the Veteran’s complaints and medical history. That examination yielded the following test results: Hertz (HZ) 500 1000 2000 3000 4000 Right Ear 25 20 45 80 100 Left Ear 25 25 45 80 100 The Veteran’s right and left ear each received a speech discrimination score of 88 percent. Under “Etiology,” the examiner provided the following opinion: Veteran was active duty 8/22/55–6/25/58. There was no enlistment or separation audiogram in the service record. Without enlistment and separation audiograms, it is not possible without resorting to speculation to determine if Veteran’s current hearing loss was the result of acoustic [trauma] during military service. Based on the current evidence a service connection cannot be made. The examination report notes that the Veteran did not complain of bilateral tinnitus. In September 2020, the Veteran testified before the Board, articulating his theory of entitlement and discussing the nature of his noise exposure during service. See Tr. at 4. In December 2020, the Veteran submitted a private medical opinion by L.R., Doctor of Audiology. Dr. L.R. stated the following: [The Veteran] is a Navy veteran who served from August of 1995 until June 1958 on an aircraft carrier. While on the flight deck, he was exposed to dangerously high noise levels. In addition, there was gunfire from the big guns on the ship that he was exposed to. The patient reported that no hearing protection was offered to him while in the Navy. Following [the Veteran’s] time in the Navy, he worked in a[n] office setting as a department head for aerospace guidance control, so he wasn’t exposed to any occupational noise after his time served in the Navy. The patient has difficulty hearing and understanding. He has much difficulty hearing women’s voices. He also suffers from bilateral constant tinnitus. The configuration of the patient’s hearing loss is consistent with noise-induced hearing loss. Certainly, [the Veteran’s] time in the Navy could have caused irreparable damage to his hearing. It is my personal opinion that it is more likely than not that the noise exposure [the Veteran] received while the Navy is directly related to his severe high-frequency hearing loss and constant bilateral tinnitus. Evaluating the evidence of record, the Board finds that service connection for both bilateral hearing loss and bilateral tinnitus is warranted. Despite the July 2017 VA examiner noting that the Veteran did not complain of bilateral tinnitus, Dr. L.R.’s opinion states that the Veteran does have bilateral tinnitus. Because tinnitus is a condition capable of lay observation and diagnosis, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), the Board finds that this, in conjunction with the Veteran’s testimony, is enough to suffice for a diagnosis. Likewise, the VA examination also shows that the Veteran experiences hearing loss for VA purposes. Thus, the first element of service connection, for each condition, has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. §§ 3.303(a), 3.385. Turning to the second element, the Board finds that the Veteran experienced in-service hazardous noise exposure. As the MPRs demonstrate, the Veteran served as an electrician aboard the U.S.S. Princeton, an aircraft-carrying vessel. It is logical to assume that the Veteran, as an electrician, would have worked on machinery, including aircraft, that produced hazardous noise. Additionally, the Board has no reason to doubt the credibility of the Veteran in this instance. Thus, the Board finds that the second element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). The third element of service connection likewise has been established. The July 2017 VA opinion is inadequate. The examiner merely sated that, because there was no audiological testing in the STRs, it would be speculation to render a medical opinion. This examiner failed altogether to even discuss the Veteran’s lay statements or theory of entitlement. Additionally, the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for a hearing loss disability where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, the VA examiner’s conclusion that only a speculative opinion could be offered flies in direct contravention of established caselaw. Thus, the Board finds that this opinion is inadequate and affords it little probative value. On the other hand, Dr. L.R. provided a wholly adequate opinion with a supporting rationale. She considered the Veteran’s lay statements and post-service employment and opined that the it was at least as likely as not that both bilateral tinnitus and hearing loss were related to the hazardous noise exposure the Veteran endured during service. Thus, when weighing the two medical opinions of record, the Board affords Dr. L.R.’s opinion considerable probative value on appeal, outweighing that of the July 2017 VA opinion. Therefore, the third element of service connection has been established. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because the evidence of record supports the Veteran’s claim for entitlement to service connection for bilateral tinnitus and hearing loss, the Veteran’s appeals are granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a), 3.385. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.