Citation Nr: 21022651 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 18-39 209 DATE: April 16, 2021 ORDER New and material evidence has been received, and the application to reopen the claim of entitlement to service connection for a bilateral hearing loss disability is granted. New and material evidence has been received, and the application to reopen the claim of entitlement to service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. An April 2014 rating decision denied the Veteran’s claims of service connection for bilateral hearing loss and tinnitus. 2. Evidence associated with the record since the April 2014 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s claims of service connection for bilateral hearing loss and tinnitus. 3. The evidence is in equipoise as to whether the Veteran’s bilateral hearing loss disability is related to active service. 4. The evidence is in equipoise as to whether the Veteran’s tinnitus is related to active service. CONCLUSIONS OF LAW 1. The April 2014 rating decision that denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen the claim of service connection for tinnitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1964 to April 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs regional office (RO). The Veteran testified before the undersigned at a virtual hearing in January 2021. A transcript of the hearing is associated with the claims file. New and Material Evidence The Agency of Original Jurisdiction (AOJ) last denied the Veteran’s service-connection claims for a bilateral hearing loss disability and tinnitus in an April 2014 rating decision, in pertinent part based on findings that there was no link between the Veteran’s conditions and service. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year. Accordingly, the April 2014 rating decision became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103. In connection with the Veteran’s August 2017 claim to reopen, the Veteran submitted a statement from his wife attesting to his hearing problems dating from service, as well as a medical opinion opining that the Veteran’s hearing loss was related to noise exposure in military service. The Board finds such evidence to be new and material under the provisions of 38 C.F.R. § 3.156, insofar as it relates to a nexus, or link, between the current disabilities and in-service injury. Both claims are accordingly reopened. Service Connection The Veteran asserts that his bilateral hearing loss and tinnitus disabilities had onset during his active military service, or are otherwise related to in-service noise exposure. He has current diagnoses of bilateral hearing loss and tinnitus. See August 2013 VA examination report. A review of the Veteran’s DD Form 214 shows that his military occupational specialty (MOS) during service was aircraft pneudraulic repairman and he stated during the course of the appeal that he was regularly exposed hazardous noise from jet and aircraft engines and hydraulic pumps. His reports of hazardous noise exposure are consistent with the facts and circumstances of his service, and his lay assertions of having been exposed to acoustic trauma during service are credible. Indeed, the regional office (RO) has already conceded the Veteran’s exposure to acoustic trauma in service. See December 2017 Statement of the Case. Therefore, the remaining inquiry is whether the Veteran’s current bilateral hearing loss and/or tinnitus is related to his in-service noise exposure. VA treatment records contain an April 2013 VA medical opinion addressing the etiology of the Veteran’s hearing loss, without a corresponding physical examination. At that time, a VA provider opined that the Veteran’s hearing loss and/or tinnitus were less likely related to service. He noted that the military enlistment and separation audiograms were normal, without any indication of significant auditory threshold shifts during service. The opinion went on to discuss that tinnitus resulted from hepatitis, influenza, and other viral diseases, with other causes including presbycusis, impacted cerumen, cochleitis, auditory neuritis, otosclerosis, and Meniere’s disease, but did not result from middle ear infections. The examiner added that other causes of tinnitus included TMJ dysfunction, vascular and neurological disorders, hearing defects about 8000 Hertz, retrocochlear disease such as acoustic neuroma, and ototoxic drugs. The examiner then concluded that the Veteran’s hearing loss and tinnitus were due to the combined effects of multiple factors incurred after military service including: age-related presbycusis which contributed to sensorineural hearing loss at all frequencies; occupational noise exposure that contributed to sensorineural hearing loss at frequencies greater than 3000 Hertz and does not progress once the individual is removed from the noise environment; and conductive hearing loss which is unrelated to noise exposure. He added that common etiologies for conductive hearing loss include outer and middle ear problems, as well as vascular conditions. The Veteran underwent a VA examination in August 2013, at which time a VA examiner opined that hearing loss was less likely than not caused by or a result of an event in military service because the Veteran’s entrance and separation examinations were within normal limits without any significant threshold shift. The examiner further opined that tinnitus was at least as likely as not a symptom associated with the Veteran’s hearing loss. The same provider who offered the April 2013 opinion provided another opinion in April 2014. He noted that the Veteran had noticed tinnitus since his military service. Nevertheless, the examiner opined that it was less likely than not related to military service because a review of the Veteran’s service records showed no evidence of tinnitus or ringing in the ears during service. The Veteran’s spouse of more than 50 years submitted a statement in August 2017, wherein she wrote that she met the Veteran while he was stationed at Udorn Air Force Base in Thailand, and that even when she first met him, she had to raise her voice for him to hear. When she asked him why he struggled with his hearing, he replied that it was because of the jet engine noise. She said he also complained at that time of ringing in his ears. She added that the Veteran’s hearing had been bad for their entire marriage. At his January 2021 hearing, the Veteran testified that the ringing in his ears began during service, but that he did not seek treatment because there were “jobs to do” and he just dealt with it. He also stated that it was his wife who first noticed that he was struggling with his hearing when he got out of service and got married in 1968. He explained that he worked on the flight line with hydraulic pumps. He also stated that he noticed both the tinnitus and hearing loss in service, and that they had both persisted from service to the present. The Veteran’s brother submitted a statement in January 2021 indicating that it was “noticeably obvious” that the Veteran’s hearing had decreased upon his return from the military. Finally, a private audiologist who physically examined the Veteran in March 2021 provided a written statement, wherein he acknowledged the Veteran’s reports of having been exposed to significant hazardous noise in service, including turbine engines and loud hydraulic pumps. The Veteran told the audiologist that when he checked in on the turbine engines in service, he was specifically advised to remove his hearing protection to ensure that it was not sucked up into the engine. The audiologist opined that the Veteran’s significant noise exposure in service contributed to his current hearing loss. He noted that the high frequency hearing loss noted on examination was consistent with significant noise exposure. The Board has considered the foregoing evidence of record and finds that, in this case, the evidence both for and against the hearing loss and tinnitus claims is at the very least in equipoise. Initially, the Board finds that the August 2013 and April 2014 VA opinions have limited probative value, insofar as the Court of Appeals for Veterans Claims (Court) has held that the mere finding of normal hearing at discharge is not an adequate basis for denying a claim for service connection, especially given competent evidence of noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). While the April 2013 VA opinion did provide a thorough opinion including an extensive list of all potential causes of tinnitus, the examiner did not actually indicate that the Veteran had any of those conditions. The Board has considered the April 2013 examiner’s conclusion that hearing loss and tinnitus are more likely due to age and to post-service noise exposure and has compared those findings to the other favorable evidence of record. That includes the Veteran’s lay statements that he has experienced hearing loss and tinnitus ever since service, his wife’s credible statements that she noticed the Veteran’s decreased hearing as early as 1968, his brother’s statement that he noticed obvious decreased hearing in the Veteran upon his return from service, and notably, the March 2021 private opinion relating the Veteran’s high frequency hearing loss to his hazardous in-service noise exposure. The Board adds that the record does not actually contain evidence of any significant post-service hazardous noise exposure. Finally, the Board notes that the Court has held that tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, which are capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds the Veteran credible to report that he has experienced recurrent tinnitus since service. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In sum, the Board finds that the evidence both for and against the Veteran’s claims of entitlement to service connection for bilateral hearing loss and bilateral tinnitus are in relative equipoise. As such, the Board will resolve all doubt in the Veteran’s favor and find that service connection for bilateral hearing loss and tinnitus is warranted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.