Citation Nr: 22015357 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-16 187 DATE: March 17, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is related to his service in transportation and as auxiliary air police. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Air Force from April 1966 to February 1970. These matters come before the Board of Veterans' Appeals (Board) from appeals of November 2017 and a January 2018 rating decisions of the Department of Veterans Affairs. The Veteran testified before the undersigned Veterans Law Judge in October 2021, and a transcript of that hearing has been associated with the claims file. Neither the Veteran nor his representative raise any remaining issues with the duty to notify or duty to assist regarding this claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to service connection for tinnitus is granted. The Veteran asserts his tinnitus began during service. See, e.g., October 2021 hearing transcript. VA has conceded that the Veteran was exposed to some hazardous occupational noise during service. See February 2018 tinnitus statement of the case (SOC). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 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 between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to discuss observed physical symptoms, such as a whooshing or roaring noise in the ears. See Layno v. Brown, 6 Vet. App. 465 (Vet. App. 1994); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (Vet. App. 2002) ("ringing in the ears is capable of lay observation"). Tinnitus is defined as a noise in the ears, which is a finding that can only be determined by the Veteran's reporting of the condition. Therefore, the Board affords great probative value to the Veteran's competent testimony and concludes that the Veteran has a current disability that began during active service. See 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Thus, the question becomes whether the current disability is related to service. The evidence against a nexus includes a VA examination where the examiner opined that the Veteran's tinnitus was less likely than not related to service because there was no significant hearing acuity shift from the Veteran's entrance examination to his separation examination, and because the service treatment records are silent on the issue of tinnitus. See November 2017 tinnitus examination. The Board affords no probative value to this opinion, as the issue is whether the Veteran's ringing in his ears is related to service, and not whether his hearing acuity shifted during service. Additionally, the opinion relies on an absence of service treatment records, while disregarding the Veteran's lay statements regarding the onset of his tinnitus. While the examiner may choose not to believe a Veteran's self-reported history, an examiner is not free to disregard the Veteran's reports of symptoms in and since service. See Layno, 6 Vet. App. at 469-70; Dalton v. Nicholson, 21 Vet. App. 23 (Vet. App. 2007). The Board may not rely on an opinion that disregards lay evidence that is potentially competent to support the presence of disability, even where the lay evidence is not corroborated by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Given the Veteran's competent, credible statements regarding the ringing in his ears and the fact that VA has conceded some hazardous noise exposure during service, the Board finds the evidence to at least be in approximate balance as to whether the Veteran's tinnitus is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts his bilateral hearing loss is a result of his service working in transportation and as auxiliary air police. See October 2021 hearing transcript. The Veteran has a current diagnosis of bilateral sensorineural hearing loss. See November 2017 VA hearing loss examination. VA has conceded that the Veteran was exposed to some hazardous occupational noise during service. See February 2018 hearing loss SOC. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 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 between the current disability and the in-service disease or injury. See Shedden, 381 F.3d at 1166 -67. Where an approximate balance of positive and negative evidence exists regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran was afforded a VA examination for his bilateral hearing loss in November 2017, and the VA examiner opined that the Veteran's hearing loss was less likely than not (50% probability) related to service. See November 2017 VA hearing loss examination. The examiner relied heavily upon the Veteran's entrance and separation examinations, reasoning that there was "clear and unmistakable evidence that thresholds were unchanged during service." See January 1966 entrance examination; January 1970 separation examination; November 2017 VA hearing loss examination. The examiner also relied upon a 2006 Institute of Medicine (IOM) Report on noise exposure in the military, citing it for the proposition that there is no scientific support for delayed onset noise-induced hearing loss. See id. The Board finds the November 2017 VA hearing loss examination inadequate for the Board's purposes. First, the examiner concluded there was "clear and unmistakable evidence" that there had been no standard threshold shifts evident between the Veteran's entrance and separation examinations. See November 2017 VA hearing loss examination. However, a review of these records demonstrates that there was a threshold shift of ten decibels in the right ear at 2000 hertz, and a shift of 5 decibels at several other frequencies. See January 1966 entrance examination; January 1970 separation examination. More significantly, however, the entrance examination did not test at 3000 hertz. See January 1966 entrance examination. It is unclear how the examiner concluded there was "clear and unmistakable evidence" that there was no standard threshold shift at 3000 hertz when the Veteran was not tested at that frequency upon enlistment. Given the examiner's repeated reliance upon this mistaken premise, the Board cannot rely upon the VA examiner's opinion. Moreover, the November 2017 VA audiological examination relies upon a 2006 IOM Report regarding delayed-onset hearing loss. The Board notes, however, that in McCray v. Wilkie, 31 Vet. App. 243 (Vet. App. 2019), the U.S. Court of Appeals for Veterans Claims found that the 2006 IOM study contained contradictory findings. McCray highlighted that the study found: "based on current knowledge of cochlear physiology there was no significant scientific basis for the existence of delayed-onset hearing loss." See id. at 256 (internal citations omitted). However, as McCray further instructs, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." See id. (internal citations omitted). Accordingly, the Board finds the November 2017 audiological examination's reliance upon this IOM report unpersuasive. In support of his claim, the Veteran has testified that he did not notice his hearing loss at first, and only began to realize that he was having difficulty hearing others when he had to ask people to repeat themselves. See October 2021 hearing transcript. The Veteran has also testified that he had little to no post-service hazardous noise exposure. See id. In addition, the Veteran has submitted two lay statements that support his claim. The Veteran's ex-wife stated that she observed the Veteran's hearing loss while he was a young man. See October 2021 letter from S.L.. The Veteran's brother stated that he noticed the Veteran's hearing loss shortly after the Veteran's discharge from service. See October 2021 letter from C.J.M.. The Board affords some probative weight to the Veteran's testimony, and the lay statements he has provided. With regard to the elements of service connection, the Veteran has a current diagnosis of bilateral sensorineural hearing loss, fulfilling the first element. See November 2017 VA hearing loss examination. VA has conceded that the Veteran was exposed to some hazardous occupational noise during service, fulfilling the second element. See February 2018 hearing loss SOC. Given the Veteran's testimony and submitted lay statements regarding the circumstances and onset of his hearing loss, the Board finds the evidence to at least be in approximate balance as to whether the Veteran's current bilateral hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.