Citation Nr: 21014687 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-47 327 DATE: March 15, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran is presumed sound on entry into active military service. 2. The Veteran has bilateral hearing loss and tinnitus. 3. The Veteran’s bilateral hearing loss and tinnitus are related to his exposure to loud and excessive noise during his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.156(b), 3.102, 3.303, 3.304, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1331, 5107; 38 C.F.R. §§ 3.156(b), 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1965 until his honorable discharge in February 1969. His active service included combat service in Vietnam as part of the Vietnam Air Offensive Campaign, Phase II, from March 1967 until March 1968 for which he was awarded the Vietnam Service Medal with one Bronze Star and Vietnam Campaign Medal. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from an October 2016 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied reopening of claims for service connection for bilateral hearing loss and tinnitus. For reasons that will be explained, the Board finds reopening of these claims was not required as the claims remained pending continuously. In January 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. Evidentiary Standards In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. §§ 1154(a); 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Reopening of the Veteran’s Claims When a claimant submits new and material evidence within one year of an RO’s rating decision before the decision becomes final, the claim remains pending until VA determines whether such evidence is new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b); Turner v. Shulkin, 29 Vet. App. 207, 211 (2018). If new and material evidence is submitted before expiration of the one-year period to appeal a RO decision to the Board, then the evidence will be considered as having been filed as part of the claim that was pending when the appeal period began. See Mitchell v. McDonald, 27 Vet. App. 431, 434 (2015). The Veteran filed his claim for service connection for bilateral hearing loss and tinnitus in October 2014. The RO denied service connection for each claim in a May 2015 rating decision. Within one year of the issuance of the rating decision, the Veteran submitted new and relevant evidence consisting of a private medical opinion as to both claims. The RO issued a September 2015 rating decision continuing denial of each claim. Within one year of the rating decision, the Veteran submitted evidence that the RO determined was not new and material. Thus, the RO issued an October 2016 rating decision continuing denial of each claim. The Board, however, finds that the evidence submitted following the September 2015 rating decision, which consisted of the Veteran’s statements about a lack of post-service noise exposure, was new and material because (1) it was the first time the Veteran presented evidence of lack of post-service noise exposure, and (2) it reasonably related to establishing a link between his military service and bilateral hearing loss and tinnitus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b); see also Voracek v. Nicholson, 421 F.3d 1299, 1304–05 (Fed. Cir. 2005) (applying definitions from 38 C.F.R. § 3.156(a) to section 3.156(b) for terms “new” and “material”). Therefore, the Board finds that the Veteran’s October 2014 claim remained pending following the September 2015 rating decision due to the submission of new and material evidence and did not become final. Thus, “reopening” of the claim was not required. 1. Bilateral hearing loss First element: A current disability As to the first element, a current disability, for VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA-contacted audiological exanimation in April 2015. The Puretone thresholds, in decibels, were: HERTZ* A B C D E F G 500* 1000* 2000* 3000* 4000* 6000* 8000* Average (B – E) RIGHT 15 15 20 15 50 50 75 25 LEFT 10 10 15 30 50 55 75 26 The Veteran’s speech discrimination scores (Maryland CNC word list) were: Right Ear 96 % Left Ear 96 % Because the Veteran’s auditory threshold at 4000 Hertz was 50 decibels, he meets VA’s standards for a current disability. Therefore, the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, the Board finds the Veteran’s military occupational specialty (MOS) as a munitions maintenance specialist as well as his experiences in service exposed him to loud and excessive noise. In a statement submitted to VA in July 2016, the Veterans stated that his MOS exposed him to small arms and explosives training on numerous occasions without hearing protection. While stationed at Glasgow Air Force Base, he was exposed to constant engine-revving of B-52s without ear protection. In Vietnam, his work location was at the end of a runway where he was exposed to constant aircraft noise from aircrafts taking off and landing. He stated that during the night, engine mechanics ran F-100 engines at high revolutions. His barracks did not have noise protection and he was constantly exposed to loud and excessive aircraft noise. The Veteran provided similar testimony during his January 2021 Board hearing. The Veteran has also cited VA’s September 2010 memorandum to ROs entitled, “Duty MOS Noise Exposure Listing,” that classifies numerous MOSs and their associated likelihood of noise exposure. The Veteran’s MOS, which is most analogous to “munitions systems” MOS, is classified as “highly probable.” The Board finds the Veteran competent to report his duties associated with his MOS and his general military service. He is also competent to report the severity, frequency, and duration of noise exposure while in service. The Board finds the Veteran credible and his statements are highly probative. Overall, the Board finds the Veteran was exposed to loud and excessive noise exposure while in service due to his MOS and general military service. Therefore, the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s bilateral hearing loss and in-service loud and excessive noise exposure, the Board finds the evidence weighs in favor of finding such a link. First, the Board observes that the Veteran underwent an audiometer examination during his September 1965 enlistment examination for the Air Force. Based on the test results, the evaluator documented that the Veteran had “defective hearing.” But it appears this determination was not made until November 1965. Generally, this would indicate the Veteran had hearing loss prior to service, which the RO found. The Board, however, finds a significant problem with the test results such that the evaluator’s opinion is not credible, nor does it have any probative value. The September 1965 audiometer enlistment examination test results are illegible. The evaluator appears to have filled in the scores for the left and right ear, but then simultaneously crossed them out. The evaluator then included additional test results above and below the prior crossed-out test results. Yet, the right ear results are entirely illegible to the Board. The November 1965 evaluator determined the Veteran had “defective hearing,” but that he was still fit for military service. There is no explanation as to how this conclusion was reached. Yet, the Veteran’s January 1969 separation examination reveals normal hearing, which indicates his hearing improved in service. The Board finds this difficult to believe given the Veteran’s credible statements about this MOS and in-service experiences. During his Board hearing, the Veteran testified that he was not provided an audiology examination on discharge. January 2021 Board Hearing Transcript, at 7. In his testimony, he implied the numbers that are provided in his 1965 and 1969 audiometer examinations were forged. See id. 7–8. The Veteran also submitted a statement in October 2017 attesting to the same. The Board finds the evidence surrounding the September 1965 audiometer test results and the November 1965 determination of “defective hearing” are too questionable to be credible or probative. Therefore, the Board presumes the Veteran had normal hearing on entry into active military service. See 38 C.F.R. § 3.304(b) (“Presumption of soundness”). Next, the Board recognizes the RO relied on a medical opinion rendered during the April 2015 VA-contracted audiological examination that determined that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of his military service. The problem with this determination is that it was only based on the Veteran’s January 1969 audiometer tests results at separation, of which the examiner stated reflected normal hearing in both ears. There is no evidence to suggest the examiner took into account the Veteran’s lay statements, medical history, or military service records. Therefore, the Board does not afford the VA-contracted examiner’s opinion any probative value. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one.”); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). The Veteran submitted a July 2015 opinion from a private physician, Dr. L, who opined that the Veteran’s bilateral hearing loss was “secondary to military noise exposure, which likely aggravated any preexisting hearing loss from previous factory work.” In reaching this conclusion, the physician discussed the Veteran’s medical history, including a private audiogram from 2014 (which is of record), his military service, and the Veteran’s lay statements. The physician documented that the Veteran worked in a factory prior to his military service (the Veteran testified his factory work was with Nabisco making cookies, not operating heavy machinery, January 2021 Board Hearing Transcript, at 10). Overall, the Board finds the private physician was competent to opine on the etiology of the Veteran’s bilateral hearing loss. The Board also finds the physician’s opinion credible and probative. Finally, the Veteran stated in a July 2016 correspondence and likewise testified that following his military service, he was not routinely exposed to loud noises or other acoustic trauma similar to that experienced during his active military service. Following discharge from the military, he worked in sales. Id. He never worked with “heavy duty” or “menial labor.” Id. His time was spent in an office. Id. The Board finds the Veteran’s statements and testimony credible and probative as they relate to post-service noise exposure. When viewed as a whole, the evidence of record weighs in favor of finding a causal link between the Veteran’s bilateral hearing loss and his active military service. The Board presumes his hearing was sound upon entry into military service. He was exposed to loud and excessive noise due to his MOS and general military experiences. He did not experience post-service loud or excessive noise exposure. The most probative medial evidence of record as to a medical link is Dr. L.’s July 2015 positive-nexus medical opinion. Therefore, the Board finds the third element is satisfied. Accordingly, the Board finds service connection for bilateral hearing loss is warranted. 2. Tinnitus First element: A current disability 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, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service “because ringing in the ears is capable of lay observation”). The Veteran has provided credible statements and testimony that he experiences ringing in his ears. The Board finds the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof As to the second element of service connection, an in-service event, injury, or illness that occurred while on active duty, for the same reasons discussed in connection with the Veteran’s bilateral hearing loss, the Board finds the Veteran’s MOS and general military experiences routinely exposed him to loud and excessive noise. Therefore, the second element is satisfied. Third element: A causal link As to the third element of service connection, a causal link between the Veteran’s tinnitus and military service, the Board finds the evidence weighs in favor of finding such a link. (Continued on the next page)   The April 2015 VA-contracted examiner opined that the Veteran’s tinnitus was less likely than not caused by his military service. For the same reasons discussed in connection with the Veteran’s bilateral hearing loss, the Board finds the examiner’s opinion is not credible or probative. Yet, the examiner also opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with his bilateral hearing loss. As the Board has already determined that the Veteran’s hearing loss is service connected as being due his in-service loud and excessive noise exposure, it reasonably follows that his tinnitus is likewise due to such noise exposure. Therefore, the third element is satisfied. Accordingly, the Veteran is entitled to service connection for tinnitus. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.