Citation Nr: 21029450 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-21 006 DATE: May 13, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's tinnitus is at least as likely as not related to his active service. 2. Although the Veteran currently has bilateral hearing loss, the evidence of record does not show that this hearing loss is related to his claimed in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2018, when it was remanded for further development. The Board notes that the claim for service connection for an acquired psychiatric disorder was granted in a March 2021 rating decision. As such, that issue is no longer before the Board. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an 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). Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 1. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus had its onset during service. Tinnitus is a disease which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Tinnitus is considered an organic disease of the nervous system and is, therefore, a chronic disease for VA purposes. 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 27172 (2015). Service connection for tinnitus may be awarded based on continuity of symptomatology. The Veteran has reported that he currently has tinnitus, which he is competent to report. Charles, 16 Vet. App. 374. Further, the record confirms the Veteran has a diagnosis. Thus, a current disability is shown. The Veteran asserts that acoustic trauma he experienced during active service while serving as a company armorer and weapon repairman caused the onset of his tinnitus and the ringing in his ears that have continued since. The Veteran reported being present during the blasts and explosions of the 1968 TET Offensive, as well as air strikes and blasts during battle. Service treatment records (STRs) are silent for any complaints of, treatment for, or diagnosis of tinnitus. However, the Veteran stated that he has had a loud ringing in his ears since experiencing acoustic trauma in service. Based on the Veteran's competent and credible testimony, the Board finds that in-service acoustic trauma has been shown. A February 2021 VA examiner noted in the examination report that the Veteran's tinnitus was less likely than not due to service as there were no reports on the Veteran's STRs or separation exam. The examiner based the opinion on the fact that the Veteran did not complain of tinnitus during service or his separation exam. The examiner did not consider the Veteran's credible report of having tinnitus in and since service in the rationale for the negative opinion, which renders this opinion inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Conversely, during the course of the appeal, the Veteran has consistently asserted that his tinnitus onset during his service and has been persistent ever since. These statements are competent and there is no evidence that they are not credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, they are entitled to significant probative weight as to the onset of the Veteran's tinnitus in service and the continuity since service. Thus, the Board finds that the evidence establishes that tinnitus had its onset in service and that it has been continuous since. Service connection for tinnitus is granted. 38 C.F.R. § 3.303(b). 2. Entitlement to service connection for bilateral hearing loss. For 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 absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, the Veteran contends that his bilateral hearing loss is due to his active service and the acoustic trauma experienced while in Vietnam, as is detailed above for the Veteran's tinnitus claim. An October 2011 VA examination shows the Veteran does have a hearing loss disability for VA purposes. As such, a current disability has been shown. Regarding the second element for service connection, which requires an in-service injury, or disease, the audiological evidence in the Veteran's STRs show that the Veteran's hearing was within normal limits throughout the duration of his service. May 1965 entrance examination audiometric findings, after conversion from American Standard Association units (ASA) to International Standards Organization-American National Standards Institute (ISO-ANSI) units, revealed pure tone thresholds in the right ear of 30, 20, 20, 15 and 10 decibels at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) respectively, and pure tone thresholds in the left ear of 25, 20, 15, 15, and 10 decibels at 500, 1000, 2000, 3000, and 4000 Hz, respectively (the conversion adds 15 Hertz at the 500 level, 10 at the 1000, 2000, and 3000 level, and 5 at the 4000 level). In August 1968, the Veteran's separation examination showed auditory thresholds results; however, because it is unclear whether such thresholds were recorded in using ASA units or ISO-ANSI units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. After ASA-ISO-ANSI conversion, findings from the Veteran's August 1968 separation examination revealed pure tone thresholds bilaterally of 15, 10, 10, and 5 decibels at 500, 1000, 2000, and 4000 Hertz (Hz) respectively (3000 Hz was not recorded). The Board notes that as it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In addition to having audiometric findings within normal limits in service, the Veteran also did not complain of or receive treatment for a bilateral hearing loss disability during his time in service. The record further shows the Veteran first began seeking treatment for his hearing issues in 2009 or 2010, several decades after service. Moreover, a February 2021 VA opined that it was less likely than not that the Veteran's hearing loss was due to his active service. The examiner explained that the Veteran's medical examinations upon entry and separation of service (with the ASA-ISO conversion applied) do not show objective evidence of permanent auditory damage from the in-service noise exposure. The examiner acknowledged the well-established relationship between acoustic trauma and hearing loss; however, the evidence did not show a nexus between the acoustic trauma experienced in service and the Veteran's hearing loss that was first noted in the record several decades after service. The February 2021 examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's contentions that his hearing loss disability is due to in-service noise exposure. The Board does not doubt the credibility of the Veteran's reports of being exposed to noise during service as the Veteran can attest to factual matters of which he had first-hand knowledge and noise exposure is consistent with his circumstances of service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a lay person, the Veteran does not have specialized training sufficient to render such an opinion as to the etiology of hearing loss noted and diagnosed many years after the noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Id. at 1377 n.4. As the preponderance of the evidence is against the claim of entitlement to service connection for bilateral hearing loss, the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ariasaif, 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.