Citation Nr: 21012341 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 11-05 837 DATE: March 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is causally or etiologically related to in-service noise exposure. 2. The evidence is in relative equipoise as to whether the Veteran’s tinnitus is causally or etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1989 to April 1992. In August 2020, the Board remanded the Veteran’s claims of entitlement to service connection for bilateral hearing loss, tinnitus, and a chronic headache disorder. Subsequently, in a December 2020 rating decision the Veteran’s claim of service connection for a headache disorder was granted and is no longer in appellate status. Issues 1-2: Entitlement to 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 active military, naval, or air service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service 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 for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is a chronic disease listed under 38 C.F.R. § 3.309(a). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his hearing loss and tinnitus are due to service as a result of working many hours as a heavy wheel mechanic and being exposed to rounds of ammunition shot during war time without hearing protection. See, e.g., November 2010 notice of disagreement. In his January 2013 Form 9 Appeal, the Veteran contends that he has had hearing loss and tinnitus since service. During the January 2018 Board hearing the Veteran testified that his hearing loss has been progressively getting worse since service. His statements and testimony are support by the lay evidence of record. See, e.g. May 2011 statement from the Veteran’s mother. Service treatment records do not show the Veteran met the VA regulatory criteria for bilateral hearing loss nor do the records document complaints of tinnitus. Post-service medical evidence shows that the Veteran has bilateral hearing loss. See VA audiological examination in January 2020 that shows the Maryland CNC speech recognition scores were 82 percent in the right ear and 84 percent in the left ear with a diagnosis of bilateral sensorineural hearing loss. As summarized above, the Veteran contends that he has had bilateral hearing loss and tinnitus since service. His DD 214 Form shows that his military occupational specialty was wheel vehicle repairer. His medals include the Southwest Asia Service Medal with Bronze Star and Kuwait Liberation Medal – Saudi Arabia. The Veteran’s contentions are credible and consistent with the circumstances of his service. The Board has no reason to doubt the credibility of the Veteran’s contentions. Hence, there is probative evidence with regard to a nexus on the basis of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b), as the Veteran has a diagnosis of bilateral sensorineural hearing loss and he is competent to report that he has experienced symptoms of bilateral hearing loss since service. As for tinnitus, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. 370 (2002). The Board recognizes that on VA examination in May 2011 and October 2012 it was indicated that the Veteran had an onset of tinnitus in 2007-2008. The Board acknowledges that on VA audiological examination in October 2010 the examiner noted that the Veteran reported slowly progressive hearing loss in both ears for the past two to three years. However, the Veteran during his DRO hearing in March 2012 testified that ringing in his ears began during service while working on diesel motors and Humvees. On VA examination in August 2012 the Veteran reported an onset of tinnitus during service, which has become frequent. During the January 2018 Board hearing the Veteran reiterated that his tinnitus started in service. The Veteran testified that during service he never wore hearing protection and his hearing loss has become progressively worse since service. He noted that as a diesel mechanic during service he was exposed to acoustic trauma including from diesel engines, tanks, and parachute jumps. The Board recognizes that there are unfavorable VA opinions regarding the etiology of the Veteran’s bilateral hearing loss and tinnitus including in October 2010, August 2012, October 2012, and November 2020. However, these opinions are of limited probative value as they are based on the absence of hearing loss in service and the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, the November 2020 VA opinion also is based on an inaccurate factual premise as the examiner noted that medical records on November 9, 2010 show the Veteran denied having hearing loss and tinnitus. However, as noted by the Board in August 2020, there is no relevant treatment record with this date. The United States Court of Appeals for Veterans Claims has found that a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993).   Thus, in viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence is in relative equipoise (evidence for and against the Veteran’s claim is essentially equal), the benefit-of-the-doubt rule applies and the claims of entitlement to service connection for bilateral hearing loss and tinnitus are granted. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.