Citation Nr: 21028407 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-38 971 DATE: May 11, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran's tinnitus is related to his military service. 2. The Veteran's bilateral hearing loss disability is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(a) (2020). 2. The criteria for service connection for a bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from June 1963 to August 1963 and from January 1965 to February 1966, with additional periods of service in the Air Force Reserves and the Air National Guard from May 1963 to February 2000 with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals on appeal of a May 2015 rating decision. The matters were most recently before the Board in November 2019, when the Board remanded the issues for further development. Service Connection The Veteran asserts that his tinnitus and bilateral hearing loss were caused by his exposure to noise from jet engines, equipment, and weapons training in service. He contends that, during the performance of his in-service duties, exposure to hazardous levels of noise could not be avoided, and he was not provided adequate hearing protection. He further contends that he has experienced tinnitus ever since exposure to acoustic trauma in military service. See August 2014 VA Form 21-4138. He reports that he was a fighter pilot for most of his military career and he was also a maintenance officer; both of which he was stationed on the flight line. He contends he has suffered from hearing loss and tinnitus ever since. See September 2015 Notice of Disagreement. He contends that his tinnitus is bilateral; that the right ear sounds like a swarm of locusts and the left has constant tinnitus with intermittent crackling noises; and the tinnitus began in the mid-1980s. See May 2018 VA examination report. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (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, 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 Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). It is undisputed that the Veteran has current bilateral hearing loss disability for VA purposes under the provisions of 38 C.F.R. § 3.385 and current tinnitus. See May 2018 VA examination report. Accordingly, the first required element of service connection is established. With regard to the second element of service connection, the Veteran is competent to report in-service noise exposure during his period of active duty service, and that he experienced hearing problems during and following service to the present day. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159 (a)(2). His reports of in-service noise exposure are credible and consistent with the type and circumstances of his military service. 38 U.S.C. § 1154(a) (due consideration must be given to the places, types, and circumstances of a veteran's service). The Board accepts the Veteran's assertions that he sustained acoustic trauma during active service due to loud noises from working with jet engines, equipment, and weapons. Therefore, the second required element of service connection is established. The key question is whether there is a nexus, or link, between the current tinnitus and bilateral hearing loss and the Veteran's in-service exposure to noise. For the reasons discussed below, the Board finds that there is sufficient competent and credible evidence to establish a relationship between the Veteran's in-service noise exposure and his current bilateral ear hearing loss disability and tinnitus. A May 2018 VA medical opinion concluded that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or a result of an event in military service. The VA examiner noted that they carefully reviewed the C-File and the medical literature, and that there was no significant threshold shift noted between entrance and separation after age correction factors were applied. They further explained that the Veteran's audiometric configuration at separation was not consistent with acoustic trauma and that he did not meet the criteria for service connection at separation. Lastly, they noted that, when evaluating the Veteran's current degree of hearing loss, once cannot rule out contributions from his occupational noise exposures and aging effects. With respect to the Veteran's tinnitus, the VA examiner explained that the Veteran was unable to correlate its onset to a particular event during his tour of duty, there was no evidence of tinnitus in his service treatment records, and his separation audiometric configuration was not consistent with acoustic trauma. See May 2018 VA examination report. An August 2019 private medical opinion concluded that the Veteran's hearing loss and tinnitus were more likely than not related to military noise exposure and may have worsened as a civilian. The audiologist noted that she had reviewed the Veteran's case history, his service records, and his entrance and separation examinations, and that her opinion was based on his case history of excessive noise from exposure from weapons training and performing his military occupational specialty (MOS) flying fighter jets, threshold shifts resulting in hearing loss at the time of his separation, and onset of tinnitus being while in service after flying fighter jets. See August 2019 private treatment records. The Board previously found that the May 2018 VA opinions as well as the August 2019 private medical opinion which have been found to be inadequate for rating purposes, as neither provided an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of an opinion comes from its rational or underlying reasoning). The Veteran was afforded another VA examination in January 2020. As a result of the examination, the VA examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or a result of an event in military service. The examiner noted that they had reviewed the Veteran's VA e-folder as well as documentation provided by the Veteran including result of a May 2016 audiogram and the Veteran's self-written document outlining various items regarding military noise exposure. The examiner explained that, in 2005, the Institute of Medicine found that the most profound auditory effects of noise exposure occur immediately following exposure, and this suggests that, if caused by military noise exposure, hearing loss and/or threshold shifts would have an onset during service and/or would be present at separation. They further explained that the Veteran presented with normal hearing as recently as 1992, over 25 years removed from documented discharge from active duty, and such a delayed onset of hearing loss best suggests an etiology outside of noise exposure from active duty. They noted that, if we consider time in reserve duty, audiograms up to 2000 should be reviewed; however, to account for effects of natural aging on hearing sensitivity, correction factors developed by NIOHB were applied to the Veteran's last in-service audiogram in 1999. They explained that, after applying these changes, neither hearing loss nor significant threshold shifts compared with earlier audiograms back to the Veteran's active duty in the 1960s are observed, and this suggests that any hearing loss or shifts observed in 1999 can be reliably attributed to natural aging. They reiterated that it is less likely than not that the Veteran's bilateral hearing loss was caused by or a result of military noise exposure. With respect to the Veteran's tinnitus, the VA examiner concluded that it was less likely than not caused by or a result of military noise exposure. They explained that tinnitus is known to be a self-detectable symptom associated with many conditions and circumstances outside of noise exposure and, when caused by noise exposure, tinnitus most commonly accompanies hearing loss and/or significant threshold shifts. They noted that the Veteran does not present with either hearing loss or significant threshold shifts between audiograms most proximal to documented dates of entry and separation, and no permanent hearing loss or threshold shifts are observed during reserve duty after applying age-correction factors developed by NIOSH. They noted that, in 2005, the Institute of Medicine found that the most profound auditory effects of noise exposure occur immediately following exposure, and this suggests that, if caused by noise exposure in the military, hearing loss would be present during service or at separation. They concluded that, as no such hearing loss attributable to noise damage is observed during service, and as noise-induced tinnitus most commonly accompanies hearing loss and/or threshold shifts, it is therefore less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The record also contains opinions offered by a private audiologist obtained as a result of an October 2020 examination that the Veteran's hearing loss and tinnitus are more likely than not related to and caused by the excessive noise he was exposed to while serving in the military. The audiologist provided the opinions based upon an examination of the Veteran and consideration of his case history, including his entrance and separation hearing exams, the types of noise exposure he experienced both during service as well as before and after service, and the Veteran's tinnitus onset during his time in service after exposure to fighter jet engines. The audiologist explained that the Veteran's pre-service occasional hunting and motorcycle usage did not affect his hearing based on the entrance examination. She further explained that the Veteran was a commercial airline pilot post-service, and the cockpit of a commercial aircraft does not expose the pilots to nearly the excessive noise level that a military fighter jet does. The audiologist also explained that medical literature and research has shown that damage caused by exposure to loud noises in the inner ear may occur long before changes in the hearing are perceived, and also that noise levels too low to kill hair cells are still able to cause irreversible damage to the cochlea, and damage that might not be immediately evident but that results in accelerated hearing loss over the following decades of life. The audiologist further explained that her opinion was based on excessive noise from exposure to weapons training and performing his MOS flying fighter jets, threshold shifts resulting in high frequency hearing loss during his time in service, and onset of tinnitus while in service after flying fighter jets. As the opinion is based upon a review of the Veteran's records and consideration of his reported history, and it is accompanied by a rationale that is consistent with the evidence of record, the circumstances of his service, and medical literature, the October 2020 opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The Board finds the Veteran to be credible and accepts the veracity of his statements concerning his exposure to acoustic trauma in service. His statements have been consistent throughout this appeal and are corroborated by the record. The Board observes that his military personnel records confirm he served as a Basic Airman, Pilot Trainee, Flying Safety Officer, Fighter Pilot, and Maintenance Officer. The Veteran is competent to report in-service noise exposure, as well as in-service ringing in the ears following such exposure. 38 C.F.R. § 3.159 (a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's report of in-service noise exposure to be consistent with the type and circumstances of his military service. 38 U.S.C. § 1154. Given the Veteran's competent and credible statements of exposure to acoustic trauma and onset of hearing problems in service, the corroboration of noise exposure in service, the January 2020 negative opinions, and the October 2020 positive opinions, the Board determines that the evidence is, at the least, in equipoise. As such, the benefit of the doubt goes to the Veteran and entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.