Citation Nr: 21028445 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-30 251 DATE: May 11, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Bilateral hearing loss had its onset in service. 2. Tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1991 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board remanded this matter in November 2018 for additional development. Service Connection 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he contends were caused by his exposure to loud noise while on active duty. The Board concludes that the Veteran has current bilateral hearing loss and tinnitus disabilities that are related to his exposure to loud noises while on active duty. 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(a). A September 2015 VA treatment record notes the Veteran reported a gradual, bilateral hearing loss over the prior 5 years. He stated that he struggles with understanding speech when wearing his earpiece that is required for his job as a deputy sheriff. He further reported bilateral, constant tinnitus that he described as low-pitched. Upon examination, mild sensorineural hearing loss was noted at 4000H. In a December 2015 private opinion, Dr. J. A. Berry notes that the Veteran has "many years of bilateral, non-pulsatile tinnitus and hearing loss that started shortly after leaving the military." It was then noted that the Veteran reported being exposed to constant loud noise while spending 2 years on a destroyer without good hearing protection, as well as being exposed to excessive noise while stationed on aircraft carriers. The doctor then stated that the Veteran's hearing loss is "consistent with noise-induced hearing loss" and, coupled with hi "temporal onset of symptoms shortly after leaving the military and his relatively young age, opined that it is more likely than not that his hearing loss is related to his excessive military noise exposure and that his tinnitus is due to his hearing loss. The Veteran was afforded a VA contract hearing loss and tinnitus examination in February 2016. A diagnosis of bilateral sensorineural hearing loss was noted, and the Veteran reported being exposed to noise on active duty from bells, whistles, general ship noises and working in an office inside an aircraft hangar. Post-military, the Veteran reported noise exposure from recreational shooting and weapons training every 4 months. The examiner opined that the Veteran's hearing loss is not related to his service, noting that he had a normal exit examination and that he reported that his ears ring sometimes after weapons training at his current job., which "shows that hearing loss is more likely related to current occupational noise exposure." It was then noted the Veteran's hearing loss did not preexist the service. The examiner noted a diagnosis of tinnitus for which the Veteran was uncertain of the onset. The examiner then opined that it is less likely than not related to his service, noting that his MOS had a low probability for hazardous noise exposure and that the service treatment records do not reveal a significant threshold shift in service. The Board notes that in the February 2016 rating decision, the RO acknowledged the Veteran's exposure to in-service acoustic trauma. Furthermore, the Board finds that the Veteran is a reliable historian and that, while he is not competent to provide a diagnosis of hearing loss while in service, he is certainly competent to report having experienced the symptom of hearing loss and the type of noise he was exposed to in service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir 2007). The Veteran stated in his March 2016 Notice of Disagreement (NOD) that his duties on active duty required him to work with aircraft that were landing, launching, and being tested in various facilities. He further stated that his birthing area on ship was below the catapult and that he began having hearing issues while on active duty. In a March 2016 statement, the Veteran's wife, stated that she has known the Veteran since 1999 and that he "always had an issue with hearing loss." She then stated that he always asks her to repeat herself and that he "has always needed some white noise to help him sleep at night." She then stated that over the years he has often told her stories of how loud it was on ships. The Veteran was afforded a VA hearing loss and tinnitus examination in August 2019. Diagnoses of bilateral sensorineural hearing loss and tinnitus were noted. The VA examiner opined that the Veteran's right ear hearing loss is less likely than not caused by or a result of military noise exposure, noting that his MOS of Yeoman carries a low probability for exposure to hazardous noise and that service treatment records are negative for significant threshold shifts. It was also noted that his November 1990 enlistment examination showed normal hearing with the exception of 40 dB 6000 Hz in the right ear, which was also present at the February 1995 separation examination. The examiner then stated that the Veteran's hearing loss is likely due to other factors. The examiner then opined that the Veteran's left ear hearing loss is at least as likely as not caused by or a result of military noise exposure, noting that service treatment records are positive for significant threshold shifts. Finally, the examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure, noting that there was no complaint or evidence of tinnitus in service or within a reasonable time post active duty, therefore the veteran's tinnitus is likely due to other causes. The Board notes that the December 2015 private opinion from Dr. Berry takes the Veteran's credible reports of noise exposure and onset of hearing loss symptoms into account and rendered an opinion based on the totality of the evidence. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 205 (2008). As such, the Board considers this opinion to be of significant probative value. The Board notes that neither VA examiner addressed the December 2015 positive nexus opinion from Dr. Berry and instead relied heavily on the Veteran's MOS having a low probability of noise exposure and a lack of documented treatment for hearing loss while in service. While the Veteran's claimed exposure to in-service noise was acknowledged, neither examiner provided any meaningful commentary. See, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion); see also, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection.). Additionally, the August 2019 VA examiner found that the Veterans right ear hearing loss preexisted his service and was not aggravated by said service, noting that entrance and separation audiograms showed 4000 Hz as 40. In addition to not using the proper clearly and unmistakably standard, as the Veteran did not have a hearing loss as defined by VA upon entrance, no hearing loss disability was noted upon entrance. Therefore, the presumption of soundness applies. See, McKinney v. McDonald, 28 Vet. App. 15 (2016). As such, the Board finds the VA examination opinions to be of no probative value. In addition, the Board finds credible the Veteran's report of having bilateral hearing loss and tinnitus since service. In light of the foregoing, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brian P. Keeley 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.