Citation Nr: 21023790 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-22 896 DATE: April 21, 2021 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence does not show that the Veteran’s bilateral hearing loss occurred during, was diagnosed within a year of service, or is otherwise etiologically related to his service. 2. Evidence supports the finding that the Veteran’s bilateral tinnitus had its onset during active and he has continuously experienced it ever since. CONCLUSIONS OF LAW 1. The criteria for bilateral hearing loss have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Air Force from February 1973 to February 1977. These issues were previously before the Board in June 2019. The Board remanded them for further development, to include obtaining updated treatment records, conducting a new VA examination, and obtaining a nexus opinion as to the etiology of both claims. Subsequently, the Veteran was provided a VA examination and the examiner provided a nexus opinion. The Board notes that no relevant outstanding treatment records were identified by the Board’s June 2019 remand directive, nor were these records been indicated by the Veteran or his representative. Accordingly, the Board is satisfied that there has been substantial compliance with the Board’s 2019 remand directives. 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. §§ 1110, 1131; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). 1. Bilateral Hearing Loss The Veteran is seeking service connection for bilateral hearing loss, which he contends began during his Air Force service. He asserts that his hearing loss is related to noise exposure from jet engines and other aircraft during active duty. See Notice of Disagreement dated May 15, 2015. Service personnel records show that the Veteran’s Military Occupational Specialty (MOS) was a Missile Systems Analyst Specialist. The Board, in its June 2019 opinion, conceded military noise exposure because of his MOS. However, military noise exposure alone is not considered to be a disability; rather, it must be shown that the military noise exposure caused a hearing loss disability for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service treatment records (STRs) contain audiometric testing at the January 1973 enlistment physical, showing the following results: Hertz 500 1000 2000 3000 4000 Right 5 5 5 5 5 Left 5 5 5 5 5 STRs also contain results of an audiogram completed in December 1976 as a part of Veteran’s separation exam, showing the following results: Hertz 500 1000 2000 3000 4000 Right 5 5 5 5 15 Left 15 5 5 5 10 STRs indicate that the Veteran denied hearing loss at enlistment and separation. Additionally, STRs indicate that the Veteran was fitted with hearing protection in June 1974. The Veteran was afforded a VA examination in May 2015, which showed the following results: Hertz 500 1000 2000 3000 4000 Maryland CNC Right 30 45 35 65 65 94% Left 25 50 75 70 70 94% As such, a hearing loss disability was confirmed in both ears for VA purposes. However, the examiner opined that Veteran’s hearing loss was less likely than not (less than 50 percent probability) related to his noise exposure in service. The examiner opined that given normal hearing bilaterally at entrance into and exit from the military in combination with the literature indicating there is no evidence to support noise-induced hearing loss developing years after exposure to the noise, the Veteran’s current hearing loss was less likely than not caused by or a result of noise exposure during military service. The examiner relied on a 2006 Institute of Medicine Study, Noise and Military Service: Implications for Hearing Loss and Tinnitus to support the opinion that delayed onset of noise-induced hearing loss is unlikely. During this examination, the Veteran reported that his hearing loss began about ten years prior and denied a family history of hearing loss. In December 2019, pursuant to the June 2019 Board remand, an additional VA examination was completed. It yielded the following results: Hertz 500 1000 2000 3000 4000 Maryland CNC Right 25 40 35 60 65 92% Left 30 50 70 65 70 84% The examiner opined that Veteran’s hearing loss was less likely than not (less than 50 percent probability related to his noise exposure in service. The examiner fully reviewed the Veteran’s file and indicated that no evidence of hearing loss was found. The December 2019 examiner also relied on the report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), where the Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. The Board finds that the December 2019 VA opinion was issued after the examiner reviewed the whole claim’s file and conducted medical research. The examiner considered not only the noise exposure and the Veteran’s hearing test results during service, but also his noise exposure and hearing acuity change after service. The opinion is consistent with the evidence of the records and has not been contradicted or undermined by another medical opinion. As such, it is given great weight. In his notice of disagreement, the Veteran’s representative wrote that the Veteran completely and credibly asserted that his hearing loss symptoms had begun during service. However, no specific examples of him noticing diminished hearing acuity were cited. Additionally, the Veteran specifically denied hearing loss at his report of medical history in conjunction with his separation physical, while indicating his need for glasses. Given his willingness to report a sensory deficit, the Board would have expected him to report hearing loss had he been experiencing it at the time. Moreover, his assertion of in-service onset is undermined by audiometric testing that was completed at separation which failed to show any hearing loss. Finally, at the May 2015 VA examination, the Veteran stated that his hearing loss did not begin until approximately 10 years prior (in 2005), which is approximately 28 years after he separated from service, and which directly contradicts the assertion in the notice of disagreement that the hearing loss had onset in service. As such, the assertion of in-service onset alone is not found to be sufficiently probative to establish continuity of symptomatology, particularly given the audiometric testing at separation which directly refuted such a conclusion. Accordingly, the Board finds that the preponderance of the evidence weighs against the finding that the Veteran’s hearing loss occurred during or was diagnosed within a year of service or was a result of military noise exposure. Service connection for bilateral hearing loss is denied. 2. Tinnitus The Veteran contends that his tinnitus is due to acoustic trauma from exposure to jet engine and aircraft noise during his active duty service. The Veteran was afforded a VA examination in May 2015 at which he reported bilateral constant tinnitus and asserted that it began during military service. Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly and consistently during the course of this claim. On multiple occasions, the Veteran indicated that the symptoms which were eventually diagnosed as tinnitus had onset during service. Accordingly, service connection for tinnitus is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jennifer M. Narvaez, 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.