Citation Nr: 21027256 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-11 027 DATE: May 5, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was incurred during his active duty service and has continued to the present. 2. The Veteran's tinnitus was incurred during his active duty service and has continued to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 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 on active duty from June 1987 to November 1999, from December 2008 to April 2009, and from November 2009 to December 2009. He also had additional Reserve service, with a verified period of active duty for training from October 2004 to April 2005. In February 2021, a hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. Service Connection Service connection may be granted 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. The three-element test for service connection requires evidence of: (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, 1166 -67 (Fed. Cir. 2004). Some chronic diseases (to include organic diseases of the nervous system such as sensorineural hearing loss and tinnitus) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned diseases). 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When certain chronic diseases are at issue, such as the above-noted diseases or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection by demonstrating continuity of symptomatology for a condition noted during service or during the presumptive period for which chronicity of the condition is not adequately supported. 1. Service connection for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss began during his active duty service and has continued to the present. Hearing loss disability is defined as: "when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The medical evidence of record, including the report of a December 2015 VA audiology examination, shows that the Veteran has been diagnosed with bilateral hearing loss in accordance with 38 C.F.R. § 3.385. The Veteran's service treatment records (STRs) document his exposure to loud noise during his active duty service as a pilot in the Air Force. Following a November 1990 reference audiogram, audiometric testing conducting on October 14, 1992, October 19, 1992, and October 20, 1992 showed increases in puretone thresholds for both ears at 2000 Hertz, at 3000 Hertz, and at 4000 Hertz when compared to the results of the November 1990 audiometric testing (though none of this in-service testing revealed hearing loss in either ear in accordance with 38 C.F.R. § 3.385). In November 1992, it was noted that the Veteran had "documented permanent hearing loss" which was first identified on October 14, 1992, with subsequent follow-up on October 19, 1992 (at 15 hours noise-free) and on October 20, 1992 (at 40 hours noise-free) which "revealed the hearing loss to be permanent." It was also noted that, as a pilot, he was exposed to hazardous noise approximately eight hours a day, two days a week. Post-service, at the Veteran's December 2015 VA audiology examination, the VA examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. For rationale, the VA examiner cited to an Institute of Medicine report which concluded that a prolonged delay in the onset of noise-induced hearing loss was unlikely and that there was an insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The VA examiner concluded by stating: "Therefore, given there was no significant shift in hearing levels greater than normal measurement variability during active military service and no record of complaint or treatment of claimed condition in [STRs], it is less likely as not that the hearing loss is related to military noise exposure." However, the VA examiner did not consider or address the threshold shifts indicated between the Veteran's reference audiogram in November 1990 and his three audiograms in October 1992 (as outlined above). Furthermore, because the Veteran's STRs did note in November 1992 that he had permanent hearing loss in light of his in-service noise exposure (as outlined above), the Board finds that the VA examiner's opinion was based on an inaccurate factual premise and therefore is entitled to no probative weight. At his February 2021 Board hearing, the Veteran testified that his hearing loss was first documented approximately five years into his aviation career (i.e., in 1992) and that it was found to be permanent. He also testified that his hearing continued to worsen no matter how much hearing protection he had, and he affirmed that he was having trouble hearing when he retired from active duty in 2009. The Board finds that the evidence of record shows that the Veteran's current bilateral hearing loss (diagnosed during the period of the current claim at his December 2015 VA audiology examination, as outlined above) began during his active duty service and has continued to the present, based on his documented noise exposure during his active duty service and the November 1992 active duty STR noting that he had permanent hearing loss in light of such in-service noise exposure, as well as his credible testimony that his bilateral hearing loss began during his active duty service in 1992 and has continued to the present. In light of the foregoing, and after resolving all doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss is warranted on a direct basis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(b). 2. Service connection for tinnitus. The Veteran contends that his current tinnitus began during his active duty service and has continued to the present. The medical evidence of record, including the report of his December 2015 VA audiology examination, shows that the Veteran has been diagnosed with tinnitus. As noted above, the Veteran's STRs document his exposure to loud noise during his active duty service as a pilot in the Air Force. His STRs do not document any reports, findings, diagnosis, or treatment of tinnitus at any time. Post-service, at his December 2015 VA audiology examination, the Veteran reported that he had had tinnitus for 15 years (i.e., starting within one year following his November 1999 active duty service discharge). The VA examiner opined that it was not possible to provide an opinion between the Veteran's tinnitus and his military service without resorting to speculation. For rationale, the VA examiner noted that there was no documentation of tinnitus in the Veteran's STRs, and therefore the VA examiner concluded that it was not possible to determine if the Veteran's tinnitus was related to his military noise exposure without resorting to mere speculation. Since this opinion is speculative in nature, the Board finds that this opinion is entitled to no probative weight. At his February 2021 Board hearing, the Veteran testified that he was experiencing tinnitus when he separated from active duty in 1999, and he affirmed that he had been experiencing tinnitus ever since 1999 and that it had gradually gotten worse over the years. The Board finds that the evidence of record shows that the Veteran's current tinnitus began during his active duty service and has continued to the present, based on his documented noise exposure during his active duty service, as well as his credible testimony that his tinnitus began within one year of his active duty service discharge in 1999 and has continued to the present. In light of the foregoing, and after resolving all doubt in the Veteran's favor, the Board concludes that service connection for tinnitus is warranted on a direct basis. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1363, 1366; 38 C.F.R. § 3.303(b). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, Counsel The Board's decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.