Citation Nr: 21013224 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-35 353A DATE: March 9, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s tinnitus is related to his military service. 2. The Veteran’s bilateral hearing loss disability is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from August 1969 to May 1971. These matters initially came before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision. Although the Veteran initially requested a hearing before the Board, through his attorney, he withdrew his request. See August 2019 correspondence. This matter has been before the Board most recently in October 2019, when the Board issued a decision denying the claims of service connection for bilateral hearing loss and tinnitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court granted the VA General Counsel’s and Veteran’s Joint Motion for Partial Remand (JMPR). The Board’s October 2019 decision was subsequently vacated, in part, and the Veteran’s claims of service connection for hearing loss and tinnitus were remanded to the Board for readjudication in compliance with the JMPR. Specifically, the JMPR called for the claims to be remanded because the Board failed in its duty to assist the Veteran by relying on inadequate examinations. Since then, the Veteran has submitted a private medical opinion regarding the Veteran’s hearing loss and tinnitus with a waiver of review by the agency of original jurisdiction (AOJ) in the first instance. Service Connection The Veteran asserts that his tinnitus and bilateral hearing loss were caused by his exposure to noise from jet engines, equipment, and shipboard noise in service. He contends that, while he was in service, he was on the USS Constellation from December 1969 until May 1970, during which time he spent time on the flight deck and on the hangar deck and was exposed to extreme noise in both of these areas. There were times when he would walk off the flight deck with his ears ringing and although he wore hearing protection on the flight deck, it did not protect his hearing when the jets went to full power. See August 2019 statement. He contends that it is difficult when he talks to his wife and that he cannot understand speaking, the television, and the doorbell. See December 2017 VA examination. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of 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). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 500, 1000, 2000, 3000, 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 Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for tinnitus 2. Entitlement to service connection for bilateral hearing loss It is undisputed that the Veteran has current bilateral hearing loss disability for VA purposes under the provisions of 38 C.F.R. § 3.385 and current tinnitus. See September 2010 VA examination report. Accordingly, the first required element of service connection is established. Regarding in-service noise exposure, a review of the Veteran’s DD Form 214 shows that his military occupational specialty (MOS) during service was Aircraft Mechanic. The Board accepts the Veteran’s assertions that he sustained acoustic trauma during active service due to loud noises from working with jet engines, equipment, and shipboard noise. Therefore, the second required element of service connection is established. The key question is whether there is a nexus, or link, between the current tinnitus and bilateral hearing loss and the Veteran’s in-service exposure to noise. The record contains opinions offered by a private audiologist obtained as a result of a December 2017 examination that there was greater than a 50 percent probability that the Veteran’s hearing loss and tinnitus began with military noise. Although these opinions are not accompanied by any specific explanation or rationale, the audiologist provided the opinions based upon an examination of the Veteran and consideration of his reported history. These opinions are therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). As noted above, in an October 2019 decision, the Board denied the Veteran’s claims based, in part, on a September 2010 negative nexus opinion (and a May 2012 addendum opinion) provided as a result of a September 2010 VA examination. These opinions indicated that the Veteran’s hearing loss and tinnitus were not at least as likely as not related to his military service. The parties to the subsequent JMPR found the negative nexus opinion to be inadequate, as it was based only on in-service audiology tests, the lack of documented hearing loss disability in service, and the absence of any mention of tinnitus in the Veteran’s military records. The rationale offered for this opinion was insufficient and, as the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. The parties to the JMPR specifically instructed the Board to obtain a new examination and opinion addressing the relationship, if any, between the Veteran’s tinnitus and hearing loss and his in-service noise exposure. The Veteran has subsequently submitted a January 2021 medical opinion from R.B., M.D., a board-certified otolaryngologist. Dr. R.B. noted that his conclusions were based on a careful review of the Veteran’s multiple military records, especially audiometric testing performed on the Veteran before, during, and after service. The doctor addressed the Veteran’s lay assertions in his report. He explained that the Veteran’s full audiometric testing showed normal hearing in February 1967 and April 1969, but that testing included only whisper voice tests in September 1967, January 1968, and on release from active duty in May 1971. He noted that the whispered voice test cannot be used as audiometric evidence by VA standards. He noted that the Veteran’s full audiometric evaluation in February 1974 showed decreased thresholds in both ears, though his results were still within normal limits. Dr. R.B. noted that the next occasion on which the Veteran’s hearing was tested was through VA in September 2010 when the Veteran reported hearing loss and tinnitus. At that time, test results indicated bilateral sensorineural hearing loss with speech discrimination of 76 percent in the right ear and 80 percent in the left ear. He noted that testing in December 2017 showed further progression of the Veteran’s hearing loss in pure tone testing and significantly decreased speech discrimination since 2014. Dr. R.B. explained that the medical literature shows that noise exposure at various levels both long- and short-term cause damage to the inner ear and results in hearing loss and tinnitus. He explained that, based on his review of the Veteran’s history of noise exposure during service, along with his audiometric testing results, it was his opinion that it was as likely as not that the Veteran’s bilateral sensorineural hearing loss and tinnitus are a result of his exposure to hazardous noise levels he experienced during his time in the Navy. He noted that he arrived at his opinion based upon his training and experience as an otolaryngologist and his review of the Veteran’s entire claims file, including VA and Navy testing as well as independent civilian testing. In conclusion, he noted that, considering all of the information he had reviewed, he was of the opinion that the material he reviewed was more than adequate for him to reach his opinions, and that he knows of no other information that would alter his opinions. Dr. R.B.’s January 2021 opinion is based upon a review of the Veteran’s records and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record and the circumstances of his service. Thus, the January 2021 opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). After considering the favorable medical opinions in relation to the other evidence of record, the Board concludes that the Veteran’s hearing loss and tinnitus were at least as likely as not incurred in service. Therefore, the criteria for service connection for tinnitus and bilateral hearing loss are met and service connection for these disabilities is warranted. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.