Citation Nr: 22014512 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-52 581 DATE: March 14, 2022 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss had its onset during service or is otherwise related to service. 2. The Veteran's tinnitus had its onset during service or is otherwise related to service. CONCLUSIONS OF LAW 1. After resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from March 1977 to March 1981 and October 1987 to October 1989, with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) from a February 2016 rating decision. The Veteran testified before the Board at a hearing in September 2021. A transcript of the hearing has been associated with the claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show the existence of (1) 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). Bilateral Hearing Loss and Tinnitus 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 (Hz) is 40 decibels (dB) or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Board has reviewed the evidence of record and finds that service connection is warranted for the Veteran's bilateral hearing loss and tinnitus. In the September 2021 Board hearing, the Veteran asserted that his bilateral hearing loss and tinnitus were incurred during service. He stated that he was exposed to constant noise from maintenance equipment while stationed aboard a ship during service in the Navy, including noise from pneumatic hammers and sandblasters. Further, he stated that such noise was magnified by the acoustics in the hull of the ship and that he was required to work in the hull of the ship for 10 to 12 hours per day. He also stated that during service he was required to maintain firearms qualifications and was routinely exposed to acoustic trauma from weapon fire, including anti-aircraft guns. Regarding the onset of his tinnitus and hearing loss, he stated that his tinnitus began during service and that he began to experience difficulty hearing conversations as well as the television since approximately the time of separation from service. Additionally, the Veteran's wife stated that she began to observe him experience hearing difficulties during his second period of active duty service, in approximately 1987. Lastly, the Veteran stated that he experienced difficulty completing VA examinations regarding his bilateral hearing loss and tinnitus because he could not properly hear the tests. In October 2018, the Veteran submitted a letter from his fellow servicemember regarding noise exposure during service. The servicemember stated that he served aboard the same ship and was assigned to the weapons department with the Veteran. He stated that during service they were constantly exposed to hazardous noise levels from ship maintenance equipment, such as deck grinders and needles guns, as well as weapon fire from frequent small arms training and live fire training at sea, which required the use of machine guns, rifles, and pistols. The Veteran's service treatment records (STRs) demonstrate reports of hearing loss. The audiological evaluation administered during the October 1976 entrance examination demonstrated normal hearing. Throughout the Veteran's first period of active duty service he underwent multiple audiological evaluations, including in March 1977, January 1979, and February 1979, which indicate varying shifts in multiple frequencies demonstrating a trend of decreased hearing. Additionally, in February 1979, the Veteran reported bilateral hearing loss and upon audiological evaluation was determined to have minimal bilateral hearing loss. The audiological evaluation administered during the March 1981 separation examination continued to indicate varying shifts in multiple frequencies demonstrating a trend of decreased hearing, with auditory thresholds greater than 26 dB in three frequencies in the right ear. During the Veteran's second period of active duty service, although the audiological evaluations administered in October 1987, November 1987, and February 1989 indicate normal hearing, the results also indicate varying shifts in multiple frequencies demonstrating a trend of decreased hearing. Lastly, the audiological evaluation administered during the September 1989 separation examination continued to indicate a trend of decreased hearing with significant shifts in multiple frequencies from the auditory thresholds results obtained upon entry into service. In July 2014, the Veteran was afforded a VA examination regarding hearing loss and tinnitus. The examiner noted that during service the Veteran was exposed to weapon fire. The examiner attempted to administer hearing tests, including a test evaluating the Veteran's puretone thresholds in decibels and a speech discrimination test using the Maryland CNC word list; however, the examiner concluded that the Veteran could not be tested due to inconsistencies in the Veteran's volunteered responses after reinstruction and retest. The Board notes that the VA examiner's uninterpreted handwritten notes regarding testing were also included in the claims file. The notes demonstrate that on the audiological evaluation, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 80 80 85 LEFT 65 60 70 70 90 The examiner concluded that for the Veteran's hearing loss and tinnitus there are no diagnoses because there are no pathologies to render diagnoses and that the pathologies could not be established due to the inconsistent responses. In November 2015, the Veteran was afforded a second VA examination regarding hearing loss and tinnitus. The examiner noted that during service the Veteran was exposed to weapon fire. The examiner provided a thorough review of the STRs and noted that a February 1979 audiological evaluation demonstrated mild left ear hearing loss; an evaluation by an ear, nose, and throat physician in February 1979 documented mild conductive hearing loss; the March 1981 separation examination documented right ear hearing loss across the test frequency range; an October 1987 audiological evaluation demonstrated a 30 dB threshold at 4000 Hz for the right ear; and a September 1989 separation examination demonstrated bilateral mild high frequency hearing loss. The examiner determined that during service the Veteran experienced significant changes in hearing thresholds in the bilateral ears. Additionally, the examiner noted that February 2011 VA treatment records document an audiological evaluation demonstrating bilateral sensorineural hearing loss with fair to poor speech discrimination scores. The examiner attempted to administer hearing tests, including a test evaluating the Veteran's puretone thresholds in decibels and a speech discrimination test using the Maryland CNC word list; however, the examiner concluded that the Veteran could not be tested due to inconsistencies in the Veteran's volunteered responses after reinstruction and retest. The Board notes that the VA examiner's uninterpreted handwritten notes regarding testing were also included in the claims file. The notes demonstrate that on the audiological evaluation, the Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 75 70 80 LEFT 60 60 76 70 88 The examiner concluded that for the Veteran's hearing loss and tinnitus there are no diagnoses because there are no pathologies to render diagnoses and that the pathologies could not be established due to the inconsistent responses. Regarding the Veteran's VA treatment records, in a February 2011 audiological evaluation, the Veteran was determined to have mild sloping to severe sensorineural hearing loss of the right ear and mild sloping to moderately-severe sensorineural hearing loss of the left ear; however, the detailed results of the puretone thresholds in decibels have not been associated with the claims file. The audiologist diagnosed the Veteran as having binaural sensorineural hearing loss with fair-to-poor word recognition ability for amplified speech. The Board finds that the evidence of record demonstrates that service connection is warranted for bilateral hearing loss and tinnitus. First, the Board finds that the Veteran's hearing testimony and the letter from a fellow servicemember demonstrate that he was routinely exposed to acoustic trauma during service from weapon fire and ship maintenance equipment. Additionally, the hearing testimony provided by the Veteran and his wife demonstrate he experienced hearing difficulties and tinnitus since active duty service to the present. The Board finds the Veteran's statements to be competent and credible evidence of in-service incurrence of tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Further, the Board finds that the competent and credible lay statements indicate that the Veteran had onset of symptoms since service. 38 C.F.R. § 3.307(a)(3). Second, the Board finds that the in-service medical evidence and the findings in the November 2015 VA examination demonstrate that the Veteran's hearing loss was incurred during service. The STRs include multiple audiological evaluations demonstrating a trend of decreased hearing and the November 2015 examiner concluded that during service the Veteran experienced significant shifts in hearing thresholds in the bilateral ears and that upon separation from service the September 1989 audiological evaluation demonstrated that he experienced mild high frequency hearing loss. Thus, the Board concludes that the evidence supports the findings that the Veteran was exposed to acoustic trauma during service and incurred decreased hearing during service. Lastly, after resolving reasonable doubt in favor of the Veteran, the Board concludes that the evidence establishes a finding of hearing loss for VA purposes. The Board acknowledges that the July 2014 and November 2015 VA examiners were unable to properly administer hearing tests; however, the handwritten notes for the VA examiners have been included in the claims file, and the Board as a fact-finder has been empowered to interpret such results in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). The Board finds that when interpreted, the handwritten notes reveal substantially similar results. Although the VA examiners determined that the Veteran could not be tested due to inconsistent responses, the Board finds that these substantially similar results demonstrate consistency over the course of two VA examinations, which the Board finds to be of probative value. Moreover, the examination results establish that the Veteran has bilateral hearing loss in excess of the threshold requirements for a finding of hearing loss for VA purposes. Therefore, the Board concludes that evidence establishes a finding of bilateral hearing loss for VA purposes. The evidence establishes a finding of bilateral hearing loss for VA purposes, and when resolving all reasonable doubt in the Veteran's favor, the competent and probative evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss had its onset in service. Further, the Board finds that the evidence persuasively weighs in favor of the claim of service connection for tinnitus. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.