Citation Nr: 21030947 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-36 285 DATE: May 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's bilateral hearing loss is related to hazardous noise exposure during active service. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran's tinnitus is related to hazardous noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to March 1967 and April 1969 to July 1970. The Veteran's military occupational specialty (MOS) was a crawler tractor operator; he also worked as a dump truck driver, construction mechanic and operator. See DD 214; see also Military Personnel Record, Record of Assignments, Principle Duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). An April 2019 Board decision remanded these matters for new opinions. That development is complete in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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 also known as a "nexus" between the current disability and in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For chronic diseases such as organic diseases of the nervous system, which includes both sensorineural hearing loss and tinnitus, a showing of continuity of symptomatology may satisfy the nexus element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The absence of in-service evidence of a disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection may be granted for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service medical findings of hearing loss, and a medically sound to attribute the post-service findings to the injury in service. A "claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service." Hensley v. Brown, 5 Vet. App. 155, 164 (1993). The VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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, 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). 1. Service connection for bilateral hearing loss The Veteran contends that his hearing loss is due to hazardous noise exposure without hearing protection during service. See December 2013 VA Form 21-4138 Statement in Support of Claim. Regarding the first Shedden element, an April 2014 VA examination showed hearing loss for VA purposes in both ears. See 38 C.F.R. § 3.385. Thus, the first element is met. Regarding the second Shedden element, the Veteran must show evidence of an in-service incurrence or aggravation. The Veteran reported exposure to hazardous noise while in service as a heavy equipment operator using bull dozers, road graders, cranes, and front-end loaders. The Board finds that the Veteran's MOS is consistent with acoustic trauma and hazardous noise exposure. Thus, the second element is met. Regarding the third Shedden element for service connection, the Veteran must show evidence of a nexus between the disability and in-service disease or injury. Weighing against the claim is an April 2014 VA examiner's negative nexus opinion that reasoned that although there was an inservice threshold shift, there was an absence of in-service evidence of hearing loss, and separation examination showed "normal hearing bilaterally." The examiner noted the Veteran worked in a foundry prior to service, worked as a heavy equipment company foreman after service, and engaged in hunting and target practice after service occasionally without the use of hearing protection. As the Board noted in an April 2019 remand, the absence of in-service evidence of hearing loss is not fatal to a hearing loss claim. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board notes the Veteran is competent to report symptoms and his reports must be considered in formulating requested opinions. It appears that the examiner discounted the reports of inservice hazardous noise exposure and focused on post-service exposure during hunting, target practice and work as a foreman. Thus, the examiner discounted the reports of inservice hazardous noise exposure without providing a reason for doing so. For these reasons, the Board finds the 2014 opinion of little probative value. In November 2019, the Veteran was afforded a new VA examination for hearing loss. In providing a negative nexus opinion, the 2019 examiner stated that daily post-service heavy equipment noise exposure from 1970 to 2009 was the more likely cause of hearing loss. However, the examiner did not note that the Veteran worked as a foreman. See April 2014 VA Hearing Loss Examination (noting that the Veteran reported he worked as a foreman). The examiner also noted the Veteran used guns for recreation before and after the military, "all without the use of hearing protection." However, this conflicts with the April 2014 examiner which noted that the Veteran reported hunting and target practice with occasional use of hearing protective devices. Finally, the 2019 examiner reasoned that there was no permanent threshold shift and normal hearing on separation. Enlistment and separation pure tone thresholds, in decibels, were as follows: Mar 1967 HERTZ 500 1000 2000 3000 4000 6000 Avg RIGHT 0 0 0 / 0 / 0 LEFT 0 0 0 / 0 / 0 June 1970 HERTZ 500 1000 2000 3000 4000 6000 Avg RIGHT 10 5+ 0 0 10+ 5 3.75 LEFT 5 10 5+ 5- 5- 10+ 6.25 Although the Veteran's enlistment separation audiograms do not reveal hearing loss as defined by regulation, they do reveal a threshold shift relative to his audiometric reading at enlistment. Thus, the 2019 VA examiner's conclusion that the separation examination showed no permanent positive threshold shift at any frequency between 500-6000 Hz in the right ear is incorrect. For the left ear, the examiner's rationale states, "No evidence of a permanent positive threshold shift at any frequency between 500-6000 Hz in the right ear . . . . hearing loss in the right ear is less likely than not (50% probability or greater) caused by or a result of an event in military service." Thus, the examiner did not address the left ear. Regardless, a statement that there was no permanent threshold shift at any frequency in either ear is incorrect. For these reasons, the Board finds the examiner's opinion is based on an inaccurate factual premise and entitled to no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Here, the Board notes that an absence of evidence of hearing loss in service treatment records is an insufficient basis, by itself, for a negative opinion. Particularly, if there is credible evidence of acoustic trauma due to noise exposure in service, post-service medical findings of hearing loss, and a medically sound basis upon which to attribute the post-service findings to an inservice injury. In this case, there is evidence of acoustic trauma and post-service finding of hearing loss. Moreover, testing at separation shows a threshold shift indicating a degree of hearing loss. Weighing in the Veteran's favor are lay statements alleging that his current bilateral hearing loss is related to inservice hazardous noise exposure without hearing protection. The Veteran stated that while in service he used an M-16 rifle, an M-14 rifle, a .50 caliber machine gun and threw live hand grenades. His DD 214 confirms training on these weapons. The Veteran also described the heavy equipment he operated while in service. The Veteran also stated that he helped build pontoon bridges using specialized boats that had loud motors. He also operated, among other machines, a bulldozer, which he noted that even while idling creates a noise level of 85dB, and "can cause permanent damage after only one workday (8 hours)." The Board finds the Veteran competent, credible, and his lay statements probative regarding in-service noise exposure and hearing problems since service. In light of the foregoing, the Board finds that service connection for bilateral ear hearing loss is warranted as the competent and probative evidence of record show a current disability, in-service noise exposure, and the Veteran's reports of continuity of symptoms since service. The claim is granted. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus disability is related to hazardous noise exposure while in service. The medical evidence of record, to include an April 2014 and November 2019 VA examinations, establish that the Veteran has a current diagnosis of tinnitus. The Veteran's service treatment records (STRs) contain a June 1970 audiogram conducted at separation, which shows a significant threshold shift. Additionally, the Veteran has reported acoustic trauma during service related to working in and around, as well as operating heavy machinery such as bull dozers and front-end loaders. He further reports that his tinnitus is due to hazardous noise exposure while in service. Thus, the Board finds that the elements of a current diagnosis and in-service incurrence are met. The remaining inquiry for the Board is whether the Veteran's tinnitus is related to active service. In providing a negative nexus opinion, the April 2014 VA examiner noted that the Veteran could not recall the specific time and circumstance of the onset of his tinnitus. The November 2019 examiner opined that his current tinnitus is less likely than not related to service because the Veteran reported the onset of tinnitus was 10 years ago and because there is no evidence of hearing loss or tinnitus on his separation examination. However, both examinations were inadequate and of little to no probative value. STR audiograms indicate some level of hearing loss while in service. The Board finds that he was exposed to inservice hazardous noise. During the 2014 examination, the Veteran could not recall the specific time that tinnitus started or one specific inservice incident at which point it started. The 2019 examiner stated that the Veteran reported an onset around 2011-2012. However, the Veteran also stated that his tinnitus was due to inservice noise exposure. The Veteran is competent to report inservice symptoms of tinnitus and intermittent tinnitus after service. The Veteran stated he operated a bulldozer and road grader without hearing protection on a regular basis for one year. The Board finds the Veteran's lay statements of inservice noise exposure, reports of tinnitus, and the intermittent continuation of symptoms since service raise reasonable doubt as to the etiology of his tinnitus. The Board finds the evidence is in equipoise as to nexus to service. Therefore, the benefit of the doubt doctrine is for application; the claim is granted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.