Citation Nr: 21029463 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-13 195 DATE: May 13, 2021 ORDER Service connection for a bilateral hearing loss disability is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his current bilateral sensorineural hearing loss disability onset as a result of acoustic trauma sustained in service. 2. Affording the Veteran the benefit of the doubt, his current tinnitus onset as a result of acoustic trauma sustained in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by the RO. The Veteran testified in a virtual hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic disease of the nervous system (i.e., bilateral sensorineural hearing loss), diabetes mellitus, and cardiovascular-renal disease, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, organic disease of the nervous system is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for a bilateral hearing loss disability Specific to claims of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that noise exposure in service caused a bilateral hearing loss disability. The February 1972 enlistment audiological examination showed that the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 LEFT 0 0 0 0 A June 1974 audiometric record showed that the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 0 0 0 0 LEFT X 0 0 0 0 A subsequent June 1974 audiometric record showed that the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 5 LEFT 30 15 5 20 10 The December 1979 separation audiological examination showed that the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 15 15 LEFT 25 20 10 10 5 However, the absence of in-service evidence of hearing loss disability is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A November 2017 VA audiology note reflects the Veteran's complaint of a clogged right ear that hurt. He reported that his right ear popped when he yawned and that he was unable to clear his right ear, even with the Valsalva maneuver. In addition, he complained of intermittent right ear tinnitus that onset in approximately 2014 after his ear popped when he was stocking a food cooler at work. He reported that his tinnitus had become constant in the right ear and was now intermittent in the left ear also. He ignored the tinnitus. He reported that he served as a truck driver instructor; coached recruits on the firing range; worked in supply; and taught water survival skills during his period of service. He reported a 6-month history of occupational noise exposures while loading trucks. Reported recreational noise exposure included owning a motorcycle. On examination, the Veteran was diagnosed with asymmetrical sensorineural hearing loss and bilateral tinnitus. In a subsequent November 2017 VA otolaryngology consult record, the Veteran complained of declining hearing in his right ear that occurred during his period of service which worsened over the past 2 years. On examination, the diagnosed asymmetric sensorineural hearing loss was confirmed. In July 2018, the Veteran underwent a VA audiological examination which showed that his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 30 45 65 90 LEFT 20 25 25 45 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. Thus, he demonstrated bilateral hearing loss disability for VA purposes. The audiologist opined that the Veteran's bilateral hearing loss disability was not at least as likely as not caused by or a result of an event in military service. The audiologist explained that all hearing tests performed in military service found normal hearing and that one could not ignore 30 plus years of motorcycle use. The Veteran reports that he was exposed to noise from loud trucks and the rifle range without hearing protection (while driving the trucks and serving as truck driving instructor) and insufficient hearing protection (while serving as instructor on the rifle range). His military personnel records document that he served in the first (1st) Motor Transport Battalion and his certificate of release or discharge from active duty (DD 214) documents that his military occupational specialty was motor vehicle operator and that he earned his rifle sharpshooter badge. He describes bilateral hearing loss since exposure to acoustic trauma in service. His statements are credible and consistent with circumstances of his service. The Board has no reason to doubt the credibility of his statements and thus concludes that there has been continuity of hearing loss symptoms since service. 38 C.F.R. § 3.303(b). The Veteran has a current diagnosis of bilateral sensorineural hearing loss as per 38 C.F.R. § 3.385. The July 2018 VA examination indicated bilateral sensorineural hearing loss disability. He is competent to report that he has experienced symptoms of bilateral hearing loss since service. His statements are credible. The Board is aware that, in the July 2018 examination, the audiologist did not render a favorable opinion regarding the etiology of the Veteran's bilateral hearing loss disability. The audiologist opined that the Veteran's bilateral hearing loss disability was not at least as likely as not caused by or a result of an event in military service because all hearing tests in service were normal and the Veteran had an over 30 year history of motorcycle noise exposure after service. The audiologist relies the absence of a hearing loss disability in service. Such deficiency is not a bar to service connection. Ledford v. Derwinski, 3 Vet. App. at 89 (1992). Further, the audiologist seemingly suggests that the Veteran's hearing loss disability may be attributable to motorcycle noise exposure sustained after service. In this regard, the audiologist's opinion is speculative in nature and does not provide the degree of certainty required for persuasive nexus evidence in this case. Conjectural or speculative opinions which suggest no more than some remote possibility of an etiological relationship are insufficient to decide a claim of service connection. See 38 C.F.R. § 3.102 (2007). See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Thus, the Board affords the audiologist's opinion as to etiology of the bilateral hearing loss disability little probative value. The Veteran has credibly asserted that he incurred acoustic trauma in service and sustained the onset of his hearing loss symptoms therein and has continued to experience hearing loss since. Thus, the evidence is in relative equipoise in showing that his current bilateral hearing loss disability had its onset due to acoustic trauma sustained in service. Reasonable doubt is resolved in the Veteran's favor and entitlement to service connection for a bilateral hearing loss disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus (Continued on the next page) The Veteran has competently and credibly asserted that his tinnitus onset in service due to noise exposure from loud trucks and the rifle range and has been continuous since that time. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). There are certain situations in which lay evidence may suffice to prove service connection on its own merits. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008). This is one such case where the Veteran's competent and credible lay evidence as to in-service tinnitus and continuity of symptomatology is sufficient to support a claim for entitlement to service connection. Regardless of the audiologist's opinion in July 2018, based upon these facts, service connection for tinnitus is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson 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.