Citation Nr: 21023068 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 20-29 294 DATE: April 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, bilateral hearing loss is the result of noise exposure during active service. 2. The Veteran’s tinnitus is a symptom of service-connected bilateral hearing loss and is the result of noise exposure during 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. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1957 to December 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran and the Veteran’s spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for bilateral hearing loss disability The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus because the claimed disabilities are the result of active service. More specifically, the Veteran alleges that noise exposure as a result of his occupational during service caused bilateral hearing loss and tinnitus. Noise exposure during service has been acknowledged by VA. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated in service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be established for any disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To established service connection, 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection for hearing loss disability may be established where the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The relevant regulations do not create a statutory presumption that a combat Veteran’s alleged disease or injury is service connected. 38 U.S.C. § 1154(b). The Veteran must still meet the evidentiary burden with respect to service connection. There is a three-step sequential analysis that must be undertaken when a combat Veteran seeks benefits under the method of proof provided by the statute. As the first step, it must be determined whether the Veteran has submitted satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. Satisfactory lay or other evidence under means credible evidence. 38 U.S.C. § 1154(b). VA is not required to accept statements or testimony that is inherently incredible. Samuels v. West, 11 Vet. App. 433 (1998). Second, it must be determined whether the evidence is consistent with the circumstances, conditions, or hardships of the service. If those two inquiries are met, VA shall accept the Veteran’s evidence as sufficient proof of service-connection, even if no official record of incurrence exists. If a Veteran satisfies both of those inquiries mandated by the statute, a presumption arises that the alleged injury or disease is service connected. Thus, as a third step in the analysis, it must be determined whether the government has met the burden of rebutting the presumption of service-connection by clear and convincing evidence to the contrary. Collette v. Brown, 82 F. 3d 389 (1996). VA shall resolve every reasonable doubt in favor of the Veteran. The Veteran has stated that a “whisper test’ was performed at entrance to service. Therefore, an audiogram is not available at entrance to service. On the November 1960 authorized audiology evaluation at separation from service, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 -- -5 LEFT 0 0 15 -- 20 In a November 2004 statement, the Veteran reported spending most of his time working in the diesel engine room without ear protection. In a December 2004 statement, the Veteran reported gradual loss in hearing that was most noticeable in noisy crowded conditions. The Veteran asserted that he was advised that “...these types of problems are brought on from working in noisy environment, even from years ago.” An audiogram was provided with the December 2004 records and showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 40 30 30 LEFT 20 25 35 45 50 However, there is no indication that the Maryland CNC test was performed and as a result, that examiner is not valid for rating purposes, but does indicate a hearing loss disability was present at that time. On the authorized audiology evaluation in February 2005, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 20 20 LEFT 15 15 25 30 30 Speech recognition ability was 96 percent in the right ear and of 96 percent in the left ear. Since the Veteran’s hearing was within normal limits, an opinion was not provided. On the private audiology evaluation in May 2006, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 -- 30 LEFT 20 20 35 55 50 There is no indication that the Maryland CNC test was performed and as a result the audiogram is not valid for rating purposes, but indicates a hearing loss disability was present. On the authorized audiology evaluation in October 2018, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 40 60 80 80 85 LEFT 40 60 70 75 80 Speech recognition ability was 12 percent in the right ear and of 36 percent in the left ear. The examiner noted a diagnosis of sensorineural hearing loss bilaterally. The examiner indicated that the Veteran reported exposure to engine noise for approximately thirty-nine months while he was aboard a ship. Exit audiogram completed at separation was within normal limits and the Veteran first noticed hearing loss approximately 10 to 15 years ago. “It is therefore less likely than not (less than 50% probability) that the Veteran’s hearing loss was caused by or a result of military noise exposure.” On the authorized audiological evaluation in July 2020, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 45 60 75 75 75 LEFT 55 70 75 80 80 Speech recognition ability was 12 percent in the right ear and of 12 percent in the left ear. The examiner opined that the claimed disabilities were less likely than not related to active service, to include noted in-service noise exposure. The examiner stated that, “A review of records revealed the veteran’s entrance audiologic examination to be have been administered in the form of a whisper test. Whisper tests are not frequency specific, nor capable of reliable loudness standardization, and therefore, are not valid measures of hearing sensitivity. Without a proper entrance examination, there is no way to determine 1) If hearing loss existed prior to military service and 2) If the veteran experienced significant threshold shifts during military service. Nonetheless, hearing sensitivity was shown to be within normal limits at all test frequencies in the right ear (and left ear) on separation examination.” The examiner highlighted normal hearing frequencies at separation, but also noted that the Veteran demonstrated normal hearing sensitivity as recent as February 2005. The examiner also highlighted that the service medical records did not show complaints during service or within a reasonable time following separation from service. In a private audiology evaluation in February 2021, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 85 85 95 LEFT 70 80 90 95 105 There is no indication that the Maryland CNC test was performed and as a result the audiogram is not valid for rating purposes, but indicates the presence of hearing loss disability. The examiner opined that based the examination and Veteran’s medical history, the claimed disability was “more likely than not” related to noise exposure during active service. The rationale provided was that extended periods of time in the engine room of the ship which can reach intensities between 85 and 120 decibels can induce permanent hearing loss. On review of the record, the Board finds the evidence to at least be in equipoise as to whether the claimed bilateral hearing loss disability arose in service or was caused noise exposure in service. The Board acknowledges that the October 2018, and July 2020 VA examiners found that the claimed disability was not related to active service. However, the Board notes that the examiners were unable to determine if there was a significant threshold shift during service since no audiogram was provided at entrance to service. Furthermore, they relied on the silence of the medical records during service and immediately following to support the negative opinions. They did not address the Veteran’s contentions that the condition grew progressively worse over time, but they highlighted discrepancies in the Veteran’s reported onset. The February 2021 private audiologist provided a positive opinion based on reported medical history and review of the record. The audiologist did not address the discrepancies in the Veteran’s reported onset or the other negative opinions, but noted that the audiological findings and timeline were consistent with someone exposed to loud noises for extended periods of time. It is noted that the Veteran reported being exposed to loud noises without protection in the engine room for 16 hours per day. As a result, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran’s bilateral hearing loss was caused by acknowledged noise exposure in-service. As the reasonable doubt created by the 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 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran contends that tinnitus is the result of noise exposure in active service. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. To establish service connection, the evidence must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis if the evidence demonstrates the claimed disability is proximately due to or the result of a service-connected disease or injury; or, the claimed disability increased in severity beyond its natural progression proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a), (b). In the October 2018 VA examination, the examiner noted a diagnosis of tinnitus. The Veteran reported that he had constant ringing of the ears but could not recall when the ringing started. The examiner noted that the Veteran reported not having any tinnitus in 2005 and therefore tinnitus onset was likely after that time and less likely than not (less than 50% probability) caused by or a result of noise exposure in service. The examiner opined that the Veteran’s tinnitus was likely a symptom associated with the bilateral hearing loss. The July 2020 VA examiner opined that the Veteran’s tinnitus was less likely than not related to active service. The rationale provided was that there was no evidence of verifiable noise injury, nor reports of tinnitus made during service in the claims file, and that the Veteran denied tinnitus at the February 2005 VA examination. The examiner highlighted that at the October 2018 VA examination, the Veteran reported onset in 2005, but during the examination he reported in 1958. At the January 2021 hearing before the Board, the Veteran testified that he initially did not know what the word tinnitus meant, but that the symptoms were present. On review of the record, the Board finds the evidence to at least be in equipoise as to whether the claimed tinnitus disability is related to active service. The Board acknowledges that the Veteran originally filed a direct service connection claim. However, based on reports of tinnitus coinciding with the Veteran’s observations of progressive hearing loss, the claim has also been viewed as a claim for secondary service connection. Both examiners found that tinnitus was not related to active service. However, the October 2018 examiner opined that the claimed disability was more likely than not a symptom of bilateral hearing loss. Service connection for hearing loss has been established by this decision. As a result, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran’s tinnitus was caused by acknowledged noise exposure in-service or is otherwise related to service through a service-connected disability. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.