Citation Nr: 21024893 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-27 057 DATE: April 26, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s bilateral hearing loss is etiologically related to active service. 2. The evidence is in equipoise as to whether the Veteran’s tinnitus is etiologically related to active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from September 1969 to September 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In a March 2019 decision, the Board denied the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 memorandum decision, the Court vacated that Board decision and remanded the claims to ensure the Board addressed the Veteran’s contention that a whisper test relied on by a VA examiner was unreliable. The Board will address this contention in the decision section below. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). SERVICE CONNECTION Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. The Veteran seeks service connection for bilateral hearing loss and tinnitus. The Veteran contends both are due to his military occupational specialty (MOS) as an armor recon specialist and a lack of available hearing protection while on active duty. Resolving reasonable doubt in favor of the Veteran, the Board concludes entitlement to service connection is warranted. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz), and the threshold for normal hearing is from 0 to 20 dB. Higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 156 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2019). Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the onset, the Board notes that the Veteran has been diagnosed with bilateral hearing loss and tinnitus. See November 2013 VA Examination. Additionally, the Veteran’s MOS was armor recon specialist and inservice noise exposure has been conceded. Service treatment records are silent with respect to any complaints, finding or diagnosis of hearing loss or tinnitus. The July 1971 service examination prior to discharge showed normal hearing based on whisper test. Moreover, there was no report of any hearing loss or tinnitus in the contemporaneous medical history. The first medical evidence of bilateral hearing loss and tinnitus was the November 2013 VA examination, decades after active service and outside the applicable presumptive period. At the November 2013 VA examination, the claims file was not available for review so the VA examiner could not give an etiological opinion. However, it was noted that the Veteran reported the onset of his hearing loss to be 6 to 10 years prior, and the onset of his tinnitus was 15 to 16 years prior. The Veteran reported a history of in-service noise exposure due to tanks and weaponry without the use of hearing protection. The Veteran also reported civilian occupational noise exposure while working at General Motors after service for 28.5 years, but he wore hearing protection. The Veteran denied any recreational noise exposure. In a January 2014 addendum opinion, another VA examiner reviewed the claims file and noted the history provided at the last examination. The examiner opined that the Veteran’s bilateral hearing loss and tinnitus were not likely due to an event during military service. The examiner rationalized that the best available research did not support the concept of delayed onset hearing loss years after a particular exposure to noise, thereby making it more likely to be from a more recent exposure such as the Veteran’s work noise. The examiner cited to Noise and Military Service Implications for Hearing loss and Tinnitus, which suggested that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure was extremely unlikely. The examiner further observed that the Veteran denied hearing loss at exit and cited onset as more than 30 years after the fact of his military duty. Similarly, the Veteran cited onset of his tinnitus as 15 to 16 years ago, again about 25 years after his military duty ended. Thus, the examiner stated that the same arguments apply. The Veteran denied ear problems at discharge, was exposed to loud work noise for years, then noticed onset of tinnitus. In support of his claims, the Veteran submitted a March 2014 private opinion. The private examiner opined that after review of the Veteran’s discharge document, service treatment records, November 2013 VA examination and January 2014 addendum, it was more likely than not that the Veteran’s hearing loss and tinnitus were related to military noise exposure. The private examiner noted that according to the American College of Occupation and Environmental Medicine, noise exposure without the use of hearing protection can cause and/or contribute to noise-induced loss, acoustic trauma and tinnitus in individuals. Subsequently, another VA addendum opinion was obtained in June 2015. The examiner noted that upon enlistment, the Veteran’s hearing was within normal limits. Upon separation, a normal whisper test was documented, and the Veteran denied hearing loss. The examiner found that the Veteran was not consistently exposed to noise during service. As a civilian, he worked for General Motors for 28 years where he was exposed to noise daily and consistently. The Veteran reported being required to wear hearing protection. Noise induced hearing loss was more likely with consistent and extended times of exposure. It was less likely with inconsistent noise exposure. The examiner also noted that many people from service exit with normal hearing even though they were exposed to noise, which was seen on a daily basis during record reviews. The examiner stated that the exit exam showed that the Veteran denied hearing loss and had a normal whisper test. At his 2013 VA examination, he reported the onset of his hearing loss as 6 -10 years ago. All evidence suggested a delayed onset of the hearing loss, per the Veteran’s own admission and service medical records. The examiner continued that in its landmark report Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), 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. Institute of Medicine stated, “There is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur.” According to the examiner, this study remained the definitive consensus in the matter. The examiner opined that the hearing loss was less likely than not caused by or a result of military noise exposure. In February 2019, the Veteran contended that the whisper test performed at his separation had no empirical validity or reliability. The Board agrees that the whisper test (or speaking to the Veteran from 15 feet away) is not reliable, and those results do not assist in determining the extent of any decrease in the Veteran’s hearing loss levels during his service. See Fagan v. Shinseki, 573 F.3d 1282, 1284 (Fed. Cir. 2009). However, the June 2015 VA examiner’s opinion was not solely based on the Veteran’s whisper test done at separation. Rather, the examiner also found relevant that the Veteran specifically denied hearing loss at that time and while he was exposed to acoustic trauma during his military service, his military noise exposure was not “continuous” whereas in comparison, the Veteran had continuous noise exposure during his 28 year career as a civilian with General Motors (albeit with hearing protection). The Veteran also noted his hearing loss had only started 6 to 7 years prior to the date of the examination, which would have been decades after service. It was these collective reasons, and not merely the whisper test, that formed the rationale for the 2015 VA examiner’s opinion. Thus, even disregarding this portion of the examiner’s opinion, the Board finds the opinion to still be of some probative value. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that even if a medical opinion is inadequate in one regard, that does not necessarily follow that the opinion is entitled to absolutely no probative weight). In June 2020, the Veteran submitted another private opinion. The private examiner opined that based on the Veteran’s MOS and an interview with the Veteran, the Veteran’s hearing loss and tinnitus was most likely caused by or a result of military service. In September 2020, the Veteran submitted an additional statement. The statement was not signed or dated, and it is unclear if the Veteran intended to submit it as medical evidence. In short, the Board finds all the medical opinions of record to have some probative value. The Veteran clearly had in-service noise exposure but did not complain of or show signs of hearing loss or tinnitus in service or for decades thereafter. While he had in-service exposure to excessive noise, he also had a civilian occupation for nearly three decades that exposed him to continuous excessive noise, albeit with hearing protection. There are medical opinions of record both for and against his claim, all of which the Board to find to have some probative value. Thus, the evidence, at a minimum, is in equipoise. Resolving all reasonable doubt in the Veteran’s favor, the third and final element of service connection has been met. Service connection for bilateral hearing loss and tinnitus is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.