Citation Nr: 21020738 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 13-03 431 DATE: April 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise as to whether bilateral hearing loss is related to service. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise as to whether tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1954 to April 1958. In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a relationship between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Organic diseases of the nervous system are among the chronic diseases listed in 38 C.F.R. § 3.309(a), and service connection for organic diseases of the nervous system may be established based on a continuity of symptomatology. 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 those 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 threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus In a statement received in February 2011, the Veteran stated that he temporarily, completely lost his hearing on two occasions during service. Once, while in training at the rifle range and again aboard a ship when he was close to the gun turrets when big guns were firing. The Veteran reported additional acoustic trauma due to other training exercises at Vieques Island, Puerto Rico, while in service. In various lay statements, he reported hearing loss and tinnitus since service with significant worsening of hearing in his left ear in approximately 2004. The service personnel records indicate that the Veteran was a telephone wireman. The records show that the Veteran participated in training maneuvers at Vieques Island, Puerto Rico. A January 2021 VA audiology report diagnosed bilateral sensorineural hearing loss and recurrent tinnitus. The report included audiograms which show a loss of 40 decibels or greater in each ear at the 4000 Hertz frequency. Therefore, a hearing loss disability for VA purposes is shown. 38 C.F.R. § 3.385. At a January 2013 VA examination, the audiologist stated that the Veteran’s in-service exposure to hazardous noise was limited to two episodes and concluded that the hearing loss and tinnitus conditions were less likely than not related to service. During a September 2017 VA examination, the audiologist noted that the Veteran reported the onset of the bilateral hearing loss as 2004 and stated that the condition had worsened over time. The audiologist concluded that it was less likely than not that the Veteran's hearing loss and tinnitus were related to service, noting that the Veteran’s hearing was normal on entry and separation from service. At a January 2021 VA examination, the examiner found the Veteran’s hearing loss and tinnitus less likely than not related to service, observing that onset for both conditions was in 2011 many years after service. In letters of March 2011 and June 2016, Dr. M.B., the Veteran’s private treating ENT physician reported treating the Veteran for hearing loss and tinnitus for a dozen years. The ENT found “irrefutable documentation on hearing tests throughout the years” that a “significant portion” of the Veteran’s hearing loss was due to two episodes of significant noise exposure during service. Noting that the Veteran’s hearing tests indicate a noise induced hearing loss, the ENT stated that “noise exposure of this nature occurs early in our young adulthood and the objective loss occurs many years later.” The ENT also stated that the Veteran “also experiences tinnitus, a noise produced from the hearing center to replace the lost frequency of sound to that ear, a cochlear pathology.” The Board finds Dr. M.B.'s opinion to be competent and credible because he is trained as an otorhinolaryngologist. Further, Dr. M.B.’s conclusions are based on a treatment relationship of many years’ duration, are supported by a detailed rationale, and refer to diagnostic tests specific to the Veteran. Those factors support the probative value of Dr. M.B.’s medical opinion. The January 2013, September 2017, and January 2021 opinions are of limited probative value, but are essentially based on the absence of evidence of treatment for hearing loss and tinnitus for many years following the Veteran's hearing and tinnitus problems in service. The examiners did not acknowledge or discuss the Veteran's reports of continuous hearing and tinnitus problems in the years since service. A medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to report symptoms of continuous decreased hearing and tinnitus in the years since service and there is nothing to explicitly contradict these reports. The Veteran has provided that testimony during a hearing before the Board and in written statements to VA. In light of this evidence, the Board finds that the Veteran’s reports of continuous hearing loss and tinnitus symptoms in the years since service are credible. The Board finds that the evidence for and against the claim for entitlement to service connection for a bilateral hearing loss disability are in relative equipoise. Therefore, reasonable doubt is resolved in favor of the Veteran, and the Board finds that a bilateral hearing loss disability is at least as likely as not proximately due to or the result of service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a bilateral hearing loss disability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Duke, 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.