Citation Nr: 21040340 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-65 569 DATE: July 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence of record is in elative equipoise as to whether the Veteran's bilateral hearing loss is due to his military noise exposure. 2. The Veteran's tinnitus is related to his military noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from February 1971 to February 1975. These matters come before the Board of Veterans' Appeals (Board) from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends he is due entitlement to service connection for bilateral hearing loss due to the noise exposure he suffered during active duty service on the USS John F. Kennedy. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a 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, 1166-67 (Fed. Cir. 2004). Service connection may not be established for disability due to hearing impairment unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's service treatment records (STRs) show two audiological examinations on record. One in January 1971 that was performed as part of the Veteran's entrance examination, and another in January 1975, conducted for the Veteran's separation examination. Both tests showed the Veteran had normal hearing. The Veteran filed his claim for bilateral hearing loss in May 2016 and was afforded a VA examination in September 2016. Puretone threshold testing was done, and a speech recognition score was issued using the Maryland CNC word list. These findings show that the Veteran met the auditory threshold for service connection of hearing impairment in both ears. The examiner diagnosed the Veteran with sensorineural hearing loss bilaterally. However, the examiner opined that the hearing loss was less likely than not caused by or a result of an in-service event. The examiner stated that the Veteran's hearing was within normal limits on his entrance and exit audiograms and the STRs were silent for any complaints, diagnoses, or treatment for hearing loss while in service. The Veteran filed a timely notice of disagreement (NOD) with the September 2016 rating decision and submitted additional evidence to the record. This included a March 2011 private medical examination of the Veteran's hearing. The private examination conducted by Dr. S.H. noted a history of exposure to noise and reported that the Veteran had served in the Navy and aboard aircraft carriers. Dr. S.H. diagnosed the Veteran with bilateral sensorineural hearing loss but did not offer an opinion or rationale as to whether the hearing loss was at least as likely as not due to his military service. In October 2016, the VA treatment records also state that the Veteran's hearing loss is consistent with a normal progressive loss due to age (presbycusis). In December 2017, the Veteran underwent another private audio examination by Dr. S.H. and Dr. S.S. A Puretone threshold test was performed, which again showed that the Veteran met the auditory threshold to show hearing impairment for VA purposes. However, there was no opinion or rationale as to whether the Veteran's hearing loss was related to his military service. In June 2020, the Veteran received another private examination from Dr. G.H. The Veteran reported that his hearing loss had its onset when he was stationed aboard the USS John F. Kennedy. The Veteran also reports that he worked one deck below the flight deck which exposed him to hazardous noise in service. Dr. G.H. opined that the Veteran's hearing loss was at least as likely as not caused by or a result of the military noise exposure described while he was in service. Dr. G.H stated that the hearing loss found is consistent with the type and duration of noise exposure described by the Veteran while in military service. Dr. G.H. reported that while the Veteran's military occupational specialty (MOS) as a Yeoman was administrative in nature, the area where he performed his duties exposed him to hazardous noise. The private examiner also held that irreversible noise damage that slowly progresses, resulting in hearing loss not always seen immediately on a Puretone audiogram but manifesting much later, has been seen in studies performed by the Massachusetts Eye and Ear Infirmary Eaton Peabody Research Laboratory. Dr. G.H. again asserted that the Veteran's military duties required him to be near hazardous noise so, even though his MOS carried a low probability for exposure to hazardous noise levels, the locations in which he performed his duties were in areas that were subjected to extraordinarily high levels of noise. Dr. G.H. noted that the conditions are as likely as not connected to the Veteran's service. In July 2020, the Veteran also submitted an article from the Annals of Work Exposure and Health that stated personnel assigned to aircraft carriers are exposed to a variety of noise sources from equipment and flight deck operations for durations of more than 12 hours a day and that personnel work and live in environments where hazardous noise areas and hearing recovery space areas are in proximity to one another, which provides little recovery from hazardous noise. The Veteran had a Board hearing in August 2020 with the undersigned VLJ. At the hearing, the Veteran testified that he was exposed to a large generator, jet aircraft, turbine aircraft, and gunfire all without hearing protection. The Veteran testified that he worked in the ready room, where pilots would prepare for their flights one level below the flight deck. The Veteran claimed that from where he was located, he could hear the roaring engines before the planes were launched. Finally, the Veteran stated that he began having hearing difficulty shortly after his separation from service. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Board finds the Veteran's September 2016 VA examination and the June 2020 private examination to be the most probative. The private examinations from March 2011 and December 2017 were afforded little probative weight, as they did not offer any rationale or opinion as to whether the Veteran's hearing loss was due to service. Therefore, the Board finds the probative evidence to be in relative equipoise. In adjudicating the claim, the Board must also assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board has no reason to doubt the Veteran's credibility and as such, his testimony at the Board hearing is found to be competent and credible, as well as his symptoms of hearing loss becoming onset shortly after service. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, the Veteran showed no hearing impairment on audiometric tests done during his active military service. However, the Veteran did offer lay statements that his hearing difficulty began shortly after leaving service. Dr. G.H. also found the Veteran's hearing loss to be linked to service and offered a thorough rationale, including evidence from medical literature, to show that hearing loss may not be noted until after the exposure to hazardous noise. As such, based on the most probative evidence of record and affording any benefit of the doubt to the Veteran, the Board finds that the Veteran's bilateral hearing loss to be related to his active service. Therefore, service connection is warranted. 2. Entitlement to service connection for tinnitus The Veteran also contends that he is due entitlement to service connection for tinnitus. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. In the September 2016 VA examination, the Veteran reported recurrent tinnitus. He claimed that he noticed a constant hissing noise. The examiner found the tinnitus to be less likely than not caused by or a result of service. The examiner noted that the STRs were silent as to complaints, diagnosis, or treatment for tinnitus in service. In the March 2011 examination conducted by Dr. S.H., tinnitus was diagnosed but there was no opinion or rationale discussing the etiology of the condition. In the December 2017 private examination, the Veteran was again found to have tinnitus. Dr. S.H. stated that it is more likely than not that the tinnitus was connected to service but failed to offer any rationale for the finding. Therefore, the March 2011 and December 2017 examinations are afforded little probative value. In June 2020, on the private examination conducted by Dr. G.H. it was reported that tinnitus was at least as likely as not caused by or a result of noise exposure that occurred in military service. Dr. G.H. stated that irreversible ear damage that slowly progresses, resulting in hearing loss not always seen immediately on a pure tone audiogram but manifesting itself much later, often has accompanying tinnitus as a symptom of the hearing loss. At the August 2020 Board hearing, the Veteran testified that he was experiencing ringing in his ears that he has been living with for many years. The Board has no reason to doubt the Veteran's credibility and as such, his in-service exposure to acoustic trauma is conceded, as well as his current symptoms of tinnitus. As an initial matter, the Board notes that difficulty hearing and ringing in the ears are the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant. Thus, the Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board finds the Veteran's testimony about tinnitus, coupled with the positive private examination in June 2020, shows that the Veteran's tinnitus was caused by the hearing loss and hazardous noise he was subjected to during his time in service. Based on the most probative evidence of record and affording any benefit of the doubt to the Veteran, the Board finds that the Veteran's tinnitus to be related to his active service. Therefore, service connection for tinnitus is warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.