Citation Nr: 21015779 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-57 433 DATE: March 18, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran’s current bilateral hearing loss disability for VA purposes is etiologically related to his noise exposure in service. 2. The evidence is at least in equipoise that the Veteran’s current tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to June 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for bilateral hearing loss 2. Service connection for tinnitus The Veteran contends that his bilateral hearing loss is related to service. Specifically, he reported that replacement hearing protection was not provided once his initial hearing protection became inadequate. He testified that he first noticed hearing loss and tinnitus towards the end of his active service. At the time, his tinnitus manifested in slight ringing, but it had since become intense. Upon separation, he worked in an office setting and wore hearing protection for recreational activities. His representative also noted that there were threshold shifts in his audiograms during service. For the following reasons, the Board finds that the Veteran has current diagnoses of tinnitus and bilateral hearing loss as defined by VA and the evidence is at least in equipoise as to whether his tinnitus and bilateral hearing loss are related to hazardous noise exposure in service. The October 2015 VA audiological examination diagnosed tinnitus and bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. He was diagnosed with bilateral sensorineural hearing loss and tinnitus. Thus, present disabilities have been established by competent and credible evidence. The Veteran’s DD 214 reflects that his military occupation specialty (MOS) was as a field radio operator and he described his duties were consistent with this via statements and testimony. His MOS is also noted to be moderately probable for hazardous noise exposure. Moreover, a reference audiogram in October 1982 documented that the reference was established following exposure in noise duties. As such, noise exposure has been established as consistent with the places, types, and circumstances of his military service. 38 C.F.R. § 3.303(a). Having established a current disability and in-service noise exposure to acoustic trauma, the remaining question is whether the Veteran’s current bilateral hearing loss is due to noise exposure during military service. As noted above, the Veteran was afforded a VA audiological examination in October 2015. The examiner opined that the Veteran’s hearing loss was less likely than not related to his military service. The rationale was that a review of service treatment records showed mild hearing loss in both ears at 4000 and 6000 Hz at his entrance examination in April 1980. He did not have any threshold shifts during his service as a radio operator through 1983. He denied occupation noise exposure, but he did report recreational noise exposure from target shooting, lawn equipment, and power tools. Based on the evidence of stable hearing thresholds during his time in service, it was less likely that his hearing loss was a direct result of military noise exposure. Regarding tinnitus, he reported constant bilateral tinnitus that began during service. The examiner opined that the Veteran’s tinnitus was a symptom associated with hearing loss. In a June 2018 addendum opinion, a clinician specified that the Veteran was competent and able to provide a case history of his own symptoms. However, this did not change the scientific research which was the basis for audiology examinations. Specifically, research from the Institute of Medicine (IOM) in 2007 dictated that the effects of noise are immediate, finite, and do not cause any delayed onset of threshold shift or symptoms. In the Veteran’s case, due to stable thresholds between enlistment and separation, acoustic trauma cannot be conceded. Therefore, it was less likely that hearing loss was a direct result of military noise exposure. It is noted that the 2015 examiner indicated that the Veteran had pre-existing hearing loss and that it was not aggravated beyond normal progression during service. However, his bilateral hearing levels did not meet hearing loss for VA purposes on his entrance audiogram. See McKinney v. McDonald, 28 Vet. App. 15, 25 (2016) (holding that the presumption of soundness applies when the level of hearing loss noted on an entrance examination does not satisfy § 3.385); cf. 38 C.F.R. § 3.385 (stating that for VA purposes, in pertinent part, that 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). As such, the Board finds that the Veteran’s bilateral hearing was presumed sound upon induction. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Board acknowledges the 2015 and 2018 negative opinions. However, with regard to the 2015 opinion, the Board finds that the opinion is supported by an inadequate rationale and is therefore entitled to limited probative weight. Specifically, the rationale was based on stable hearing thresholds, but a review of audiograms in the Veteran’s service treatment records show shifts throughout the five audiograms he had in his three years of service. For example, his April 1980 audiogram documented decibel levels of 20 bilaterally at 500 Hz and then as 10 bilaterally in March 1982 before then going to 10 on the right and 15 on the left at separation in May 1983. For the right ear, there was a shift of 10 decibels in the 1000, 2000, and 4000 Hz between the April 1980 examination and the separation examination. For the left ear, there was a 10-decibel shift at the 3000 Hz between entrance and separation. At 6000 Hz, he was documented as having decibel levels of 25 in the right and 20 in the left in April 1980. In April 1981, he was recorded to be at 10 decibels bilaterally and then 5 decibels bilaterally in March 1982. At separation in May 1983, he was recorded at 10 decibels in the right and 25 in the left. With regard to the 2018 opinion, the IOM study cited found insufficient evidence to support a theory of delayed hearing loss from exposure to high levels of noise. While, the IOM study found no support for a theory of delayed onset, the study did find that an individual’s awareness of the effect of noise on hearing may be delayed when some damage occurs in a young person that progresses with additional exposure and aging. See Institutes of Medicine of the National Academies, Noise and Military Service. The Board finds the 2018 VA medical opinion inadequate for adjudication purposes. Specifically, the examiner relied on the IOM report which appears to be somewhat inconclusive regarding delayed onset hearing loss. Additionally, in this case, the issue is not delayed onset but rather whether any damage to the Veteran’s ear functions occurred in service and if so whether the current hearing loss is at least in part attributable to it. The Veteran’s service treatment records, specifically the October 1982 audiogram, confirm that he had noise exposure attributable to his duties and he testified that he began to notice a difference in his hearing and slight ringing toward the end of his active duty in 1983. Therefore, reliance on that study alone is insufficient to support a negative etiology opinion. The clinician specifically indicated that the Veteran was competent and able to provide a case history of his own symptoms, but then did not address his lay statements of continuity, his lack of exposure to post-service occupational noise, and his low exposure to recreational noise while wearing hearing protection. As the opinion is inadequate, it cannot serve as the basis of a denial of entitlement to service connection. In light of the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss and tinnitus were caused by acoustic trauma in service. As discussed above, the Veteran has a current diagnosis of bilateral hearing loss for VA purposes and current tinnitus, his exposure to hazardous noise in trauma is established, and he has competently and credibly reported an onset of bilateral hearing loss and tinnitus while in service with symptoms continuing through the present. It is noted that the Veteran is competent to establish features and symptoms observable through his senses such as tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). And, although the Veteran is not competent to diagnosis himself with hearing loss, he is, however, competent to testify that he noticed a decline in his hearing ability in service. Layno v. Brown, 6 Vet. App. 465, 468-69 (1994).   As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.