Citation Nr: 22016463 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-28 218 DATE: March 22, 2022 ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for bilateral hearing loss disability. ORDER Entitlement to service connection for tinnitus is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for bilateral hearing loss disability is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus began during active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Navy from February 1977, to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran was afforded Travel Board Hearing before the undersigned Veterans Law Judge. Unfortunately, technical difficulties with the Digital Audio Recording system (DARS) prevented the creation of a written transcript of that hearing and the Veteran was offered the opportunity to testify at another hearing in a December 2021 letter. See December 15, 2021 VA Correspondence. The Veteran responded in writing that he did not wish to appear at another hearing, and asked the Board to consider his case on the evidence of recordto include correspondence he submitted on March 10, 2022 in support of his claims. See March 10, 2022 Lay Correspondence. Therefore, the Board will proceed with adjudication. As referenced above, the Veteran has submitted additional evidence after the most recent May 15, 2018 statement of the case (SOC). As his substantive appeal was filed after February 2013, a waiver of Regional Office (RO) review is not required. Entitlement to service connection for tinnitus. The Veteran contends his tinnitus is related to exposure to loud noises while he worked on the flight deck of the USS Forrestal. The Veteran contends the hearing protection issued during service was not always sufficient to protect his hearing. See May 7, 2018, Notice of Disagreement (NOD). See also, March 10, 2022 Lay Correspondence re: not wearing hearing protection at times to be able to hear commands issued during takeoff off and recovery. The Veteran service records indicate that he served as an aviation aircrewman for the US Navy. See DD-214. Service connection may be granted for a disability due to a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be evidence of: (1) a present disability; (2) incurrence or aggravation of a disease or injury in service; 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). Discussion First, the Board concedes that the Veteran was exposed to hazardous military noise based on his military occupational specialty (MOS) of Aviation Aircrewman. In a request for examination, the RO noted that this MOS was highly probably for hazardous noise exposure. See January 23, 2018, VA Form 21-2507. In addition, the Board finds that the Veteran currently has tinnitus. The Veteran is competent to state that he has symptoms of tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that the VA examiner did not question his report that he currently has tinnitus. Thus, the only question remaining is whether the Veteran's current tinnitus is related to his military noise exposure. In a March 2018 Hearing Loss and Tinnitus examination, the examiner offered a negative nexus opinion towards service. The examiner first indicated that tinnitus is a subjective complaint, and no objective measure exists to verify the presence or absence of tinnitus. The examiner further explained that the etiology of tinnitus cannot be determined using current clinical technologies. The examiner reasoned that the etiology of tinnitus is typically inferred by patient history and a review of medical records. The examiner continued with the following rationale to support a negative nexus opinion: "While there is a report of military noise exposure, there is no evidence of noise injuries, as it is determined there were no significant shifts in hearing. A review of the Veteran's C-file and service medical records revealed no record of complaint or treatment for tinnitus. The Veteran reported the onset of tinnitus occurred "sometime in the 80's", which was after his discharge from the service. It is widely accepted that noise-induced tinnitus occurs at the time of the noise exposure, and does not develop years later. Additionally, per the Institute of Medicine (2006) "as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases." Based on this rationale, the Veteran's tinnitus is deemed less likely than not caused by or a result of military noise exposure." See March 27, 2018, Hearing Loss and Tinnitus examination, pgs. 5-6. Lay Correspondence In March 2022, the Veteran submitted correspondence detailing how they never complained about how their ears rang and made it difficult to sleep. The Veteran stated "we all had the same issues and thought it normal. We left the service joking about how long it would take for the ringing to stop. It never did." See March 10, 2022, Lay Correspondence. Analysis After carefully reviewing the evidence of record and resolving all reasonable doubt in his favor, the Board finds that the Veteran's current tinnitus cannot be reasonably disassociated from his in-service exposure to hazardous noises. Given the high probability of hazardous noise exposure in service due to the Veteran's MOS, taken together with his credible statements indicating that his tinnitus began in service and continued since, the Board finds there is at least an approximate balance of positive and negative evidence as to whether Veteran's tinnitus began in service. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Additionally, the Board observes that although the VA examiner opined that the Veteran's tinnitus was not likely related to noise exposure during military service, the same examiner noted that tinnitus is a subjective complaint, and no objective measure exists to verify the presence or absence of tinnitus. The examiner explained that the etiology of tinnitus cannot be determined using current clinical technologies. The examiner reasoned that the etiology of tinnitus is typically inferred by patient history and a review of medical records. The Board underscores, the Veteran is competent to report that he has had tinnitus during and since service because it is an observable condition. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the Board assigns probative value to the Veteran's credible and competent report that he has had tinnitus during and since service. See March 10, 2022, Lay Correspondence. Resolving all reasonable doubt in his favor, with full consideration of the Veteran's reported history of tinnitus during and since service, the Board finds that the Veteran currently has tinnitus that was incurred during his active service as a result of hazardous military noise exposure. Accordingly, service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss disability is remanded. The Veteran contends his bilateral hearing loss is related military service, specifically due to regular exposure to loud noises while he worked on the flight deck of the USS Forrestal. The Veteran contends the hearing protection issued during service was not always sufficient to protect his hearing from damage. See May 7, 2018, Notice of Disagreement (NOD); See also, March 10, 2022 Lay Correspondence re: not wearing hearing protection at times to be able to hear commands issued during takeoff off and recovery. The Board finds that a new VA examination is warranted to determine the nature and etiology of this Veteran's bilateral hearing loss disability for the following reasons. A March 2018 VA Hearing Loss and Tinnitus examiner confirmed a diagnosis of bilateral hearing loss. With respect to the Veteran's left ear, the March 2018 examiner noted the Veteran had normal hearing at enlistment. The examiner also noted the Veteran had significant threshold shifts at 1000 and 4000Hz. The examiner ultimately determined that the Veteran's left ear hearing loss is less likely than not due to his military service because there was no significant threshold shift when comparing his enlistment examination in February 1977 to his June 1982 examination for the US Navy Reserves (ACDUTRA). Of note, the examiner also indicated that the Veteran's left ear hearing loss pre-existed servicebut failed to provide sufficient rationale for that determination. See March 27, 2018 Hearing Loss and Tinnitus examination, pg. 5. The Board finds that, even if the examiner had provided sufficient rationale for determining the Veteran's left ear hearing loss pre-existed service, the examiner provided the opinion using an incorrect legal standard in claims where the disorder may have pre-existed the Veteran's military service and, as such, affords this opinion no probative value. Barr v. Nicholson, 21 Vet. App. 303, 311. Moreover, the Board notes, a preexisting hearing loss was not noted in the Veteran's February 1977 enlistment examination report and as such, the presumption of soundness attaches, which may be rebutted only by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304 (b). See also, February 28, 1977, Report of Medical Examination (Enlistment). With respect to right ear hearing loss, the VA examiner offered a negative nexus opinion to service. The examiner found the Veteran had normal hearing at enlistment. The examiner further reasoned that although the testing at separation showed significant threshold shift at 1000 Hz, this is not a frequency that is generally affected with noise exposure. The examiner highlighted the Veteran's occupational and recreational noise exposure post separation to further support a negative nexus opinion. See March 27, 2018 Hearing Loss and Tinnitus examination, pgs. 4-5. Here, it is not clear to the Board why a significant threshold shift at 1000 Hz is not generally affected with noise exposure. In other words, it is not clear why a significant threshold shift at 1000 Hz in the right ear is not an indicator of noise-induced hearing loss. Second, while the examiner does address the Veteran's exposure to occupational and recreational noise post-service, it is not clear whether the Veteran's lay assertions of in-service noise exposure associated with his MOS were considered in formulating the medical opinion, particularly when exposure to hazardous noise during service was conceded. Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). It is also important to note, the Veteran has submitted correspondence addressing his exposure to occupational noise post service. The Veteran explained that double hearing protection was MANDATORY, and the first infraction resulted in a written warning and days off without pay. The second infraction resulted in termination. See March 10, 2022, Lay Correspondence. For the reasons outlined above the Board finds a new Hearing Loss and Tinnitus examination and medical opinion is warranted to address the Veteran's claim for entitlement to service connection for a bilateral hearing loss disability, to include whether the Veteran's bilateral hearing loss (left or right ear), pre-existed service. Accordingly, this matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to obtain a medical opinion for the diagnosed bilateral hearing loss. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner is asked to identify the following: (a.) Did the Veteran's bilateral hearing (left or right ear) clearly and unmistakably exist prior to the Veteran's entrance onto active duty? When answering this question, please phrase it as either "the Veteran's bilateral hearing loss (did/ did not) clearly and unmistakably exist prior to the Veteran's entrance onto active duty." (b.) If the examiner determines that the Veteran's bilateral hearing loss (left or right ear) did exist prior to the Veteran's entrance onto active duty, the examiner should state an opinion as to whether the bilateral hearing loss clearly and unmistakably did not undergo an increase in severity during service or, if there was an increase, whether it was in the natural progression of the disease. In providing the opinion regarding the preexistence of the Veteran's bilateral hearing loss, the examiner should specifically comment on the findings included in the February 28, 1977 enlistment examination. The examiner must explain the rationale for all opinions, to specifically include comment on the significance of the apparent puretone threshold shift at 1000 and 4000 Hz for the left ear during service. (c.) Alternatively, if the examiner determines that the Veteran's bilateral hearing loss (left or right ear) did not exist prior to the Veteran's entrance into active duty, the examiner should state an opinion as to whether it is at least as likely as not that bilateral hearing loss is related to service and to any acoustic trauma sustained therein. The examiner should consider the Veteran's lay assertion of exposure to hazardous noise associated with his MOS as an Aircrewman. See May 7, 2018, Notice of Disagreement (NOD); See also, March 10, 2022 Lay Correspondence re: post-service hearing protection. The examiner must explain the rationale for all opinions, to specifically include comment on the significance of the apparent puretone threshold shift at 1000 Hz during service for the right ear. (continued on next page.) 2. After completing the above development, and any other development, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative a supplemental statement of the case (SSOC) and return the matter to the Board for appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.